Gay v. Marrionneaux , 21 La. Ann. 288 ( 1869 )

Ludeling, C. J.

This is a suit to partition certain property held iij common by the plaintiff aud the defendants. A sale of the property was ordered by the District Court to effect the partition. Gay had been in possession of the property before the sale, and he presented to "the notary, who had been appointed to make the partition, a claim against the joint owners, amounting to ten thousand three hundred and sixty dollars, for improvements placed on the plantation at his own cost.

Opposition to this claim having been made by some of the joint owners, the matter was referred to the judge by the notary.

The court gave judgment in favor of Gay for the amount claimed, hut charged him thirteen hundred and five dollars for the use of the plantation, and referred the case hack to the notary in order that the partition might he completed. This judgment was rendered on the fifteenth day of May, 1867; an appeal was taken from the judgment, and this court dismissed the appeal on the ground that all the parties interested in the judgment had not been made parties to the appeal. Subsequently, on the seventeenth of July, 1868, this appeal was taken from the judgment homologating the partition. The only complaint made by tbe appellants is. tliat tbe amount allowed to Gay for improvements is incorrect. Tbis is tbe same thing which was decided in the judgment of the District Court on the fifteenth of May, 1867, and -the parties are the same. More than one year having elapsed since the rendition of that judgment the plea of res judicata,, interposed by t-lie plaintiff, must he sustained. 11 La. 497; 8 Rob. 195; 12 Rob. 319; 7 An. 530; C. C. 1270; C. F. arts. 539, 567.

It is therefore ordered that the appeal :be dismissed at the costs of the appellants.

• Rehearing refused.