352 So. 2d 727 | La. Ct. App. | 1977
Lead Opinion
The administratrix of this succession filed a petition for partition by licitation of immovable property in which the succession allegedly owned a one-half interest and the appellant owned the other one-half interest. In response appellant filed exceptions of prematurity and no right of action. The trial court overruled these exceptions and ordered that “the partition by licitation be allowed.” From this judgment the present appeal was taken.
The judgment overruling exceptions is not a final judgment but is only interlocutory and appellant has not shown that it will cause irreparable injury. Consequently, it is not appealable. LSA-C.C.P. Art. 2083, State v. Placid Oil Co., 274 So.2d 402 (La.App. 1st Cir. 1972) affirmed in part,
With the overruling of the exceptions filed by appellant it was in order for the trial judge to permit appellant to answer the petition, thereby joining issue. The merits of the partition suit were not before the trial judge, and consequently that portion of the judgment which ordered that the partition be allowed was not responsive to the pleadings.
We note that the petition for partition was followed with an order for appellant to show cause why the judgment should not be rendered as prayed for, and this might explain why the court ordered the partition in a summary fashion. Nonetheless, this is not a petition for public sale of succession property under C.C.P. Art. 3271, but rather a petition for partition between co-owners under Art. 4603, which prescribes that a partition proceeding is subject to the rules regulating ordinary proceedings. In order for the trial court to adjudicate the merits of the case it would be necessary for issue to be joined either by appellant’s answer or by the administratrix entering a preliminary default against appellant.
Accordingly, the judgment appealed from insofar as it orders that the partition be allowed is reversed and set aside, and the case is remanded to the district court for further proceedings. The costs of this appeal are assessed against the Succession, and all other costs are to await the outcome of the case.
REVERSED AND REMANDED.
Rehearing
In her application for rehearing appellee states that we reversed the judgment of the trial court on the grounds of unauthorized use of summary proceedings and challenges our right to do so in view of the fact that appellants did not file a dilatory exception of unauthorized use of summary proceeding and thereby waived that objection pursuant to LSA-C.C.P. Art. 926. We did not reverse on that ground but rather on the ground that the judgment, to the extent that it ordered that the partition by Imitation be allowed, was not responsive to the pleadings at that time.
To further elucidate on the status of the pleadings, when this rule was tried appel-lee’s original petition did not encompass a summary proceeding in the first instance. The prayer of her petition was that appellant be cited and served, that there be judgment in her favor after due proceedings. She further prayed that the property be partitioned by licitation, that the sale of the property be conducted at public auction and that a notary of the parish be appointed to affect the partition. The record shows that the matter was submitted on argument of counsel, but there is no record of any evidence being taken or any stipulations of fact. Art. 4605 contemplates a trial at which evidence is adduced on the basis of which the court makes the determination as to whether or not plaintiff is entitled to a partition of the property.
Furthermore, the order attached to the petition for partition setting the rule for trial on August 31, was later continued to September 17, on which date exceptions were filed. The exceptions only were fixed for trial on October 8, and the judgment appealed from was rendered after the October 8 trial of the exceptions. Indeed, the judgment itself referred to an October 8 hearing on the exceptions, which was the only matter set for trial on that date.
We adhere to our original opinion and the rehearing is denied.
REHEARING DENIED.
