Moore v. Day Builders Supply Co.

3 La. App. 575 | La. Ct. App. | 1926

REYNOLDS, J.

OPINION.

It is not seriously contended that paragraph four of plaintiff’s original petition stated a cause of action against defendant, Day Builders Supply Company, Inc., and plaintiff to correct it by a supplemental petition which added thereto, in reference to the servant driving said company’s truck at the time of the accident, the words, “who was acting in the course of his employment and in the furtherance of the business of his employer”.

The Day Builders Supply Company, Inc., insists that the supplemental and amended petition should not be considered by us for the reason that there was no formal order of court permitting plaintiff to amend her petition.

Plaintiff, in argument, contended that the city judge, who acted as his own clerk of court, having in person marked the amended petition “filed” that this was equivalent to a formal order allowing the amendment.

This contention of plaintiff finds support in the fact that the judge referred defendant’s exception to the merits after plaintiff’s amended petition had been served on it.

Under the circumstances we thi'nk the amended petition cannot be totally disregarded.

But there was no default taken on the amended petition or answer filed thereto. It therefore follows that all the proceedings had in the case subsequent to the filing of the amended petition were highly irregular, null and void, and that the case must be remanded to the court below to be proceeded with according to law.

If it were to be conceded that marking “filed” on the amended petition by the city judge, who acted as his own clerk, was equivalent to allowing the amended petition, it would then follow that the amended petition had been allowed without the defendant having had an opportunity to be heard as to whether or not the amendment, such as it was, should have been allowed at the time and under the circumstances existing when the amendment was tendered to the court for filing.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and the case is remanded to the City Court, Alexandria District, Rapides Parish, Louisiana, with instructions to the judge to hear both parties on the question as to whether or not the amended petition should be allowed, and after that question is decided, without regard as to how it is decided, that the case then be proceeded with according to law.

Plaintiff to pay the costs of the appeal; all other costs to await the final result.