Clement v. Dunn , 168 La. 394 ( 1929 )

On Appellee's Motion to Fix Case for Argument Before Another Case Pending. The plaintiff in this suit and his wife, Mrs. Marie Anais Doucet, joined the present defendant as plaintiffs in a suit against the Gulf Refining Company of Louisiana et al., to annul an oil and mineral lease executed by Jules Clement, Sr., and his said wife, in favor of S.A. Spencer Co., affecting fractional sections 46 and 49, township 9 south, range 2 west, Acadia parish, La.

The said suit was filed in the Fifteenth Judicial district court on October 3, 1927. On May 18, 1927, approximately five months before that suit was filed, the plaintiff signed an act, which, it is alleged, purports to be a sale, to defendant, of fee simple title and mineral interest in the aforesaid land. On October 17, 1927, the plaintiff and his wife, Marie Anais Doucet, as coplaintiffs in the suit of Jules Clement, Sr., et al. v. Gulf Refining Company et al., filed a motion in said suit in which they alleged:

"That since the filing of the above suit they have ascertained that the said suit is unfounded both in law and in fact, and

"That for said reason they desire to withdraw as plaintiffs in said suit, and to have their demands therein dismissed."

On the same day the foregoing motion was filed, plaintiff instituted the present suit, wherein he alleges that the said act of May 18, 1927, purports to be a sale of the fee and mineral interest of the plaintiff in the property, to the defendant, and he attacks that act upon the grounds of fraud, misrepresentation, etc.

The motion of the plaintiff and his wife, Marie Anais Doucet, to withdraw as plaintiffs in the suit against the Gulf Refining Company et al., and to have the demands they made in that suit dismissed, as to them, was excepted to by the defendant in this suit. In due time this exception was heard and overruled, and judgment was rendered dismissing that suit as to Jules Clement and his said wife. From this judgment the defendant in this suit appealed. After the appeal was perfected and the transcript was filed, the defendant applied to this court and obtained an order placing the case on the preference docket. A motion was made to remand the case. This motion was heard and denied. In the meantime, the present case was tried in the district court, and, from a judgment of that court annulling the purported act of sale from Clement to Dunn of date May 18, 1927, the defendant appealed. Upon the lodging of the transcript of appeal in this court, the plaintiff filed the following motion in both of said cases, viz.:

"Now into this Honorable Court, through his undersigned counsel, comes Jules Clement, Sr., appellee in the above numbered causes, and, on suggesting that at the instance of Lindsey H. Dunn, appellant, the said causes have been advanced and placed on the preference docket of this Court, respectfully moves that in fixing the said causes for argument, that of Clement v. Dunn, No. 29544, be ordered fixed first, so that the same may be heard and finally disposed of before that of Jules Clement et als. v. Gulf Refining Co. of La. et als., No. 29078, is fixed for argument, and for cause of this motion your mover respectfully shows:

I. "That, as will appear by reference to the judgment in the cause No. 29544 (Tr. p. 209) and the reasons for said judgment (Tr. p. 203), the judgment therein appealed from is in favor of your mover, decreeing that a certain Notarial Act of May 18, 1927, whereby your mover apparently sold to said Dunn the undivided one-fourth of a tract of land in Acadia Parish, is null, void, and of no effect, ab initio, the reasons for said judgment being (a) that the signature of your mover to said purported act of sale was obtained by the misrepresentation and fraud of said Dunn, and (b) that said Dunn himself, in his answer (Tr. p. 31) admitted that it had never been the intent of your mover to sell him any part of said land; II "That, as will appear by reference to the Transcript of appeal in the said cause No. 29078, and as is alleged and admitted by the said Dunn in paragraph 1 of his motion to place the said cause No. 29544 on the preference docket of this Court, the cause of action therein was predicated upon the validity and existence of the said purported act of sale, and upon the consequent joint ownership of said land by your mover and the said Dunn, and III "That if the judgment appealed from in the cause No. 29544, — setting the said act of sale aside as null, void, and of no effect, is correct, the foundation of the cause No. 29078 entirely fails and the appeal therein is automatically disposed of without the necessity of examining and disposing of the questions presented therein; and your mover says that the discussion and consideration of those questions would involve a waste of time and money, unless and until it is definitively decided by your Honorable Court that the judgment annulling and rescinding the said purported act of sale is incorrect.

"Wherefore, your mover prays that after due notice to Liskow Irion, opposing counsel, it be ordered by your Honorable Court that this motion be granted, and, consequently, that it be ordered that, in fixing the said causes for argument, that of Clement v. Dunn, No. 29544, be fixed first, so that the same may be heard and finally disposed of before that of Jules Clement et al. v. Gulf Refining Co. of La. et als., No. 29078, is fixed for argument."

A rule to show cause why these motions should not be granted, issued in each case. No return has been made to either rule, and the matter is submitted in that form.

We have considered the record in both cases and find that the motion to hear and determine the issues presented in the case of Jules Clement, Sr., v. Lindsey H. Dunn, No. 29544 of the docket of this court, by preference and prior to the assignment and submission of the case of Jules Clement et al. v. Gulf Refining Company of Louisiana et al., No. 29078 of the docket of this court, is well founded, and, for the reasons stated in the motion, it is ordered that the rule issued herein be perpetuated, and that this case be fixed for argument, and that it be heard and disposed of by preference and before the case of Jules Clement et al. v. Gulf Refining Co. of Louisiana et al.,¹ 169 La. ___, 124 So. ___, No. 29078 of this court's docket.

¹ Opinion not available, but see Table of Cases Reported in subsequent volumes.