West v. Green ( 1930 )

ODOM, J.

This is a petitory action involving the title to the N. W. % of the N. W. %, section 11, township 18 north, range 7 east, situated in the parish of Richland. The plaintiffs are Mrs. M. E. West, the surviving widow in community of J. B. West, and Mrs. Ethelyn Brent, Mrs. Margaret West Morris, and Mrs. Dorothy West Barham, sole heirs of J. B. West. They allege that they are the owners of the property which was acquired by the said J. B. West under two deeds, one from the succession of Charles Chaffe, conveying an undivided five-eighths interest therein, and the other from the succession of John Powell, conveying the other three-eighths interest therein, which deeds are dated November 2, 1896, and duly recorded in Conveyance Record Book P, pages 38 and 39, of the Parish of Rich-land. They trace their title back to the United States through what is alleged to be an unbroken chain of transfers.

They further allege that the defendant, W. M. Green, is in possession of the said property without right or title, and they pray for judgment recognizing them as the owners of said property and entitled to possession.

The defendant, Green, admitted in answer that he was in possession of the property, but denied generally and specially plaintiffs’ allegations of ownership, and affirmatively alleged that he was the owner of the property under title which he acquired from C. B. Paul by deed dated April 10, 1917, and duly recorded on September 24 of that year in Conveyance Record Book 31, page 583, of Richland parish, and further that he had acquired the property in good faith and in good faith had taken corporeal possession of it more than ten years previous to the date on which this suit was filed, and that he had in good faith continued to possess it without interruption down to the present time, and he pleaded ten-year prescription.

On the first trial of the case there was judgment in the lower court for plaintiff, and defendant appealed. When the case came on for hearing in this court, it was suggested that one of the plaintiffs, Mrs. M. E. West, was dead, but neither her attorneys nor those for defendant knew the date of her death, and the case was remanded to the district court for the pur-, pose stated in our opinion handed down on May 8, 1929. See West et al. v. Green, 10 La. App. 707, 122 So. 128.

It developed that Mrs. West died after the trial in the district court, hut before judgment was signed. The judgment of the lower court was therefore null, having' been rendered in favor of a dead person. -

Upon proper application, the heirs of Mrs. West were made parties in the district court, whereupon counsel for plaintiff moved that the case be reset and for judg- ■ ment on the testimony previously taken, and the court fixed the case for January. 29, 1930. On the latter date counsel for • plaintiff called up their motion, but before a ruling was made counsel for defendant moved to re-open the case for the introduction of further testimony, which motion was granted and the case re-opened for a. purposes, all over plaintiffs’ objection.

The case was again set for trial, and counsel for plaintiffs offered in evidence the testimony taken on the previous trial and rested, their ease. The defendant called : and examined some five or six witnesses. who had not testified on the previous trial, but plaintiffs offered no additional testimony. On the second trial there was judgment for defendant, and plaintiffs appealed. In this court counsel for plaintiffs suggest the following errors:

(1) That the trial judge had no right to grant a new trial; and (2) that the judgment is not supported by the record.

On the first point counsel argue that, under the ruling of this court remanding the case, no further testimony could be introduced. We cannot concur in that view. The case was remanded to the district court to be reinstated on the docket in the precise situation it was when Mrs. West died. It developed that she died after the case was tried but before judgment was rendered; therefore the judgment was null as being rendered in favor of a dead person. After the heirs of Mrs. West were made parties in the district court, the case could have been re-submitted and judgment rendered on the testimony previously taken. But the district judge was authorized to re-open the case for the introduction of additional testimony under proper showing.

Under article 557 et seq., of the Code of Practice, and Act No. 10 of 1926, p. 11, courts may grant new trial within three judicial days upon the application of the party who believes himself aggrieved, and he must do so “if there is a good cause for same.”

Article 560 of the Code provides that a new trial shall be granted “if the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before.”

Defendant in his application for a new trial set out that he had since the trial discovered new evidence material and important to his cause which he could not with diligence have obtained before, and attached to his application the affidavits of several witnesses showing what they would swear to if called. The minutes disclose that the motion for a new trial was set down, taken up, tried, and allowed. The testimony adduced on the trial of the motion, if any, is not before us, but we must assume that it was sufficient to warrant the ruling of the trial judge. The granting of new trials is a matter which addresses itself largely to the discretion of the trial judge, and appellate courts will not interfere unless their rulings are manifestly arbitrary.