18 La. Ann. 596 | La. | 1866
The plaintiff brought this action in May, 1861, alleging himself to bo the owner of an undivided half of a plantation, called the “Revelry Plantation,” situated on Bayou Boeuf, in the Parish of Avoyelles, and that the defendant is owner of the other half of that property. He further sots forth that in March, 1858, he leased the undivided half of the said property belonging to him to the defendant, for the term of three years ; that at the expiration of the lease the defendant refused to deliver to him the leased premises, and refused to recognize him as owner of any part of the property.
Plaintiff prays to be docreed owner of an undivided half of the plantation, and that a partition be made of it, and that experts be appointed to effect the same.
Tho defendant was cited but filed no answer. The Court commenced on the 5th day of February, 1866. On that day the case was continued.
On the 8th, Court met “iiursuant to adjournment,” and on that day the continuance was set aside, and a judgment by default taken, no notice having been given to the defendant of the motion to set aside the continuance.
The act of lease shows that plaintiff, in making the lease, acted for himself and as natural tutor of his child, Euphrosine Ogden.
Judgment was rendered in conformity with the prayer of the petition, and the defendant has appealed.
The setting aside the continuance, without notice to the adverse party, was clearly irregular. 3d L. 145.
The record discloses the want of proper parties and proper proceedings in tho Court below to give effect to a judgment of partition. C. C. Arts. 1217, 1252, 1259.
It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. And it is further ordered, adjudged and decreed, that this case be remanded to the District Court for further proceedings, according to law.
