Gentilly Development Co. v. Carbajal , 166 La. 905 ( 1928 )

On Motion to Remand. This is a suit for a partition by judicial sale of a part of what is called the Seeger tract, referred to in the case of Carbajal v. Tessier, 163 La. 894, 113 So. 138. The plaintiff claims two-thirds interest in the property, and avers that the defendant owns the other third interest. She pleaded that the plaintiff owned the whole property, by virtue of an assignment from Charles A. Tessier, and that he had bought it at the public sale made by S.L. Jacobs, auctioneer, on the 26th of April, 1926. When this suit for partition was filed, the suit of Mrs. Carbajal (defendant in this suit) to compel Tessier to comply with his bid made at the auction sale on April 26, 1927, had not been finally decided. A decision was rendered on April 27, 1927, and a rehearing was denied on May 23, 1927, relieving Tessier of any obligation to comply with his bid, and allowing him to recede from the transaction, under articles 2492 and 2493 of the Civil Code, because the bid was at a certain price per acre and there was an excess of more than a twentieth — in fact more than a tenth — of the area indicated in the advertisement, and offering of the property for sale. Meantime the plaintiff in this partition suit had bought the two-thirds interest in the property from the two sisters of Mrs. Carbajal. In defense of this suit, she invoked the assignment made by Tessier to the present plaintiff, of Tessier's rights under the adjudication to him by the auctioneer, Jacobs, as the basis of a plea of estoppel. The plea was overruled, and judgment was rendered in favor of the plaintiff, ordering a partition by public sale of the property. This appeal is from that judgment.

The appellant has filed a motion to remand the case in order to introduce in evidence the petition filed by Tessier and a petition of intervention filed by the present plaintiff in a suit against the auctioneer, Jacobs, to recover the 10 per cent. deposit paid by Tessier at the time of his bid, which he was allowed to recede from, by the decree rendered in Carbajal v. Tessier, supra. The suit of Tessier against Jacobs, and the intervention of the present plaintiff, as assignee of the rights of Tessier, were filed after the appeal was taken from the judgment rendered in the present suit. The appellant's counsel contend that the petition of Tessier, and the petition of intervention of the present plaintiff, in the suit against Jacobs, will enlighten us as to the purport and effect of the assignment by Tessier to the present plaintiff, of Tessier's rights under the adjudication made to him by Jacobs on the 26th of April, 1927, which Tessier was allowed to recede from, by the final decree of this court in Carbajal v. Tessier. In their brief in this court, the attorneys for appellant announced that, in order to show that they were not seeking to retard a decision of this case, they would abandon their motion to remand the case if the appellee would make the following admissions: (1) That the Gentilly Development Company, in the case of Charles A. Tessier, Jr., v. S.L. Jacobs, asserted under oath that that suit had been brought by Tessier in its behalf; and (2) that the said Gentilly Development Company, intervener in said suit, is the identical corporation that is plaintiff in the present suit. The attorneys for appellee immediately made the admissions, unqualifiedly, in a supplemental brief, and, in addition thereto, reproduced, in the printed brief, a copy of the petition filed by Tessier and of the petition of intervention filed by the Gentilly Development Company in the suit of Tessier v. Jacobs, which are the documents which the counsel for appellant claim they desire to introduce in evidence in defense of this suit, and for the introduction of which they desire that the case should be remanded to the civil district court. Inasmuch as it is not disputed that the printed copies of the petition of Tessier and of the petition of intervention of the Gentilly Development Company in the suit of Tessier v. Jacobs are true and correct copies, and inasmuch as it is not the appellee but the appellant who wants the case remanded and reopened for the introduction of these documents in evidence, there cannot be any valid objection on her part to our referring to these printed copies for such information as we may need on the subject, if we find that they can add anything to the purport or effect of the assignment by Tessier to the Gentilly Development Company. Under the admissions made by counsel for the appellee, in response to the proposal of counsel for the appellant, there is no necessity whatever now — if there was ever any necessity — for remanding this case to the civil district court. We must bear in mind that the plaintiff in a partition suit — more than in an ordinary suit — has the right to insist that the court shall avoid unnecessary delays.

"The judge, before whom the action of partition is brought, is bound to pronounce thereon in a summary manner, by which is always meant with the least possible delay and in preference to the ordinary suits pending before him." Rev. Civ. Code, Art.1328.

The motion to remand is overruled.

On the Merits.