Succession of Foster , 23 La. Ann. 100 ( 1871 )

Taliaferro, J.

D. H. Voss and John D. Voss, alleging that they are the sole heirs of their late brother, J. Conrad Voss, deceased, who was generally called and known by the name of J. Conrad Foster, who died in the parish of Jefferson, Louisiana, in September, 1865, intestate, leaving no heirs in the ascending or descending line, institute this action against Anna Maria Ossing, late widow' of Conrad Foster and her present husband G-ogreve, to compel the filing of an aicount by Mrs. Gogreve of ber administration of tlie estate of Foster and to be put in possession thereof as his only heirs. The answer is a general denial. The defendant excepts that the attorneys who instituted the suit, were not authorized by the alleged claimants to bring this action. She avers that she is the sole heir of her late husband Conrad Foster, and as such, after having duly administered on his estate, I was put in possession of the same. She avers that, should the plaintiffs be recognized as heirs, she would still be entitled to the usufruct of the estate during her life. She prays that the plaintiffs’ pretensions be rejected and their suit dismissed.

It appears from the record that suit was originally brought by the plaintiffs against the defendant on the same cause of action in the district court of the Second Judicial District, but was discontinued by the plaintiffs and the present suit commenced in the Parish Court of Jefferson on the ninth of December, 1868. The case was fixed for trial on the twenty-ninth of April, 1869. In May following, the defendant, by counsel, filed an exception and motion to dismiss on the ground that upon discontinuing their suit in the district court, they had not paid the costs before bringing the present suit. The case was continued to the twenty-first of May, when the following order, dismissing the suit, was rendered: “This case, continued to this day, was called up. Plaintiffs not present, and not represented by their counsel, McGloin & Kleinpeter; present, N. Commandeur of counsel for defendant; and, on motion of N. Commandeur, of counsel for defendants, Mr. and Mrs. G-ogrevc, it is ordered that this suit be dismissed at plaintiffs’1 costs.”

A motion for a new trial was filed, the trial of which, it seems, was. fixed on the sixth of October. No action, it seems, was ever taken in regard to it. On the twenty-third of December the plaintiffs again brought suit against the defendant on the same cause of action, their petition being the same as in the second suit which was dismissed. The defendants again excepted as in the previous case, and, besides,, set up the plea of lis pendens. This exception was not tried, and no further action was taken in regard to it, so far as shown by the records.. On the thirteenth of June, 1870, the plaintiffs took this appeal from the judgment by which their second, suit was dismissed on the twenty-first of May, 1869.

The plaintiffs contend that if defendant was entitled to a judgment, against them, it was only a judgment of nonsuit, whereas the judgment, not expressing that it was so rendered, may be taken to imply a rejection of their demand, which might be fatal to their claims. We regard the judgment complained of as a judgment of nonsuit. Under the pleadings, the court could have rendered no other judgment. The action of the court was clearly predicated upon the provisions of article 536 of the Code of Practice, which directs that “if, after the cause has been set down on the docket for trial, the plaintiff does not appear, either in person or by attorney, to plead his cause, on the day fixed for trial, the defendant-may require that judgment of nonsuit b.c rendered against such plaintiff with costs.” It was not essential that the words, “ as of nonsuit,” should have been added.

It is therfore ordered, adjudged and decreed, that the judgment of the district court bo affirmed with costs. See the case Phillipe Allinet v. his Creditors, 15 An. 130.