Louisiana Practice - Application of the Exception of Res Judicata in Petitory Actions

Similar documents
Louisiana Practice - Res Judicata - Matters Which Might Have Been Pleaded

Reservation of Rights to Personal Jurisdiction

Mineral Rights - Interpretation of Lease - Effect of Signing a Division Order

Pleading and Practice - Right to Discontinuance or Nonsuit After Plea of Prescription

Mineral Rights - Unitization - Prescription

Sales - Litigious Redemption - Partial Transfer

Mineral Rights - After-Acquired Title Doctrine - Reversionary Interest

Sales - Simulation - Right of Forced Heirs to Bring Action After Property Has Passed Into the Hands of Third Parties

Louisiana Practice - Exceptions of Want of Capacity and No Right of Action Distinguished

Criminal Procedure - Right to Bill of Particulars After Arraignment

Mineral Rights - Servitudes - Prescription - Public Records Doctrine

Security Devices - Mortgages on Immovables - When Effective Against Third Persons

Louisiana Practice - Deficiency Judgment Act - Applicability to Surety on Mortgage Note

Criminal Procedure - Pleas of Guilty Not Responsive to Bill of Information - Right of State to Correct Proceedings

No. 45,305-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * versus * * * * *

Sales - Automobiles - Bona Fide Purchaser Doctrine

Civil Procedure - Filing Suit In Court of Incompetent Jurisdiction

Louisiana Practice - Declaratory Judgment Action As Substitute for Bill In Nature of Interpleader and As Alternative Remedy

Civil Code and Related Subjects: Sale

Mineral Rights - Recital of Oustanding Mineral Rights in a Deed of Sale as a Reservation - Error of Law

Williams v. Winn Dixie: In Consideration of a Compromise's Clause

Evidence - Unreasonable Search and Seizure - Pre- Trial Motion To Suppress

Civil Procedure - Reconventional Demand - Amount in Dispute

Louisiana Practice -Splitting Causes of Action

State v. Barnes - Procedural Technicalities or Justice?

States - Amenability of State Agency to Suit

Louisiana Practice - Effect of Application for Supervisory Writs on Trial Court Proceedings

Corporate Law - Restrictions on Alienability of Stock

No. 49,278-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * MICHAEL DAVID COX Plaintiff-Appellee. Versus

Sales - Warranty Against Eviction - Heirs Estopped to Plead Ten-Year Acquisitive Prescription

Practice and Procedure - Intervention by Insured in Actions Brought Under the Direct Action Statute

Judicial Mortgage Rights: Recordation of Non- Executory Judgments

Civil Code and Related Subjects: Mineral Rights

Substantive Law - Private Law: Prescription

Jurisdiction and Venue of the Action of Nullity in Louisiana

Exceptions. Louisiana Law Review. Aubrey McCleary

Criminal Law - Article 27 of the Criminal Code - Attempted Perjury

Verbal Abuse and the Aggressor Doctrine

Mineral Rights - Servitudes - Interruption of Prescription

Criminal Procedure - Defense of Insanity - An Appraisal of State v. Watts

Property - Transfer of Immovable Community Property - Estoppel and the Parol Evidence Rule

Jurisdiction in Personam Over Nonresident Corporations

Mineral Rights - Mineral Reservations In Sales of Land to the United States

Jurisdiction Ratione Materiae et Personae - Suits Against Insolvent Corporations in Receivership

Civil Code and Related Subjects: Prescription

Divisibility of the Mineral Servitude

Criminal Law - Misappropriation of Funds of a Commercial Partnership by One of the Partners

No COURT OF APPEALS OF NEW MEXICO 1976-NMCA-129, 90 N.M. 54, 559 P.2d 842 December 14, 1976

Criminal Procedure - Three-Year Prescription on Indictments

Conflict of Laws - Jurisdiction Over Foreign Corporations - What Constitutes Doing Business

In Personam Jurisdiction - General Appearance

Constitutional Law - Equal Protection - Due Process of Law - Salary Discrimination Against Negro School Teacher

Mineral Rights - Prescription Aquirendi Causa

Prescription of Criminal Prosecutions in Louisiana

Fourteenth Court of Appeals

Status of Unendorsed Instrument Drawn to Maker's Own Order

Follow this and additional works at:

The Assignment of Error

NO CA-0250 BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE COURT OF APPEAL FOURTH CIRCUIT VERSUS

Criminal Law - Simple Rape as a Responsive Verdict Under an Indictment for Aggravated Rape

Labor Law - Right to Strike During Reopening Negotiations While Contract is Still in Effect

Partition - The Effect of R.S.13:4985 On Partititons Made Without Representation of All Co-Owners

Donations - Revocation For Non-Fulfillment of Condition

Practice and Procedure - Right to Appeal from a Judgment in a Jactitory Action

STATE OF MICHIGAN COURT OF APPEALS

Civil Law Property - The Law of Treasure and Lost Things

Civil Code and Related Subjects: Negotiable Instruments and Banking

Private Law: Torts. Louisiana Law Review. William E. Crawford Louisiana State University Law Center

Measures of Damages - Vendor's Breach of Bond for Deed - Fruits and Revenue of the Land

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT **********

Property - Thirty-Year Prescription in Boundary Action

No. 47,886-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * Versus * * * * *

Libel and Slander - Limitation of Actions - Single Publication Rule

Torts - Personal Injury or Wrongful Death Suits by Child or Administrator Against Parent

Security Devices - R.S. 9: Requirement of Suit Within One Year on Materialman's Lien

IN THE FLORIDA SUPREME COURT CASE NO. SC WILLIAM DAVID MILLSAPS. Petitioner, MARIJA ARNJAS, Respondent.

Pleading Lack of Jurisdiction as a Defense in Federal Courts

Commercial Law: Negotiable Instruments

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE September 13, 2017 Session

Criminal Law - Insanity - Burden of Proof

Procedural Delays. Louisiana Law Review. Sam J. Friedman

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

Remission of Debt - Donation Not in Authentic Form

Discontinuance and Nonsuit

Employment Contracts - Potestative Conditions

Procedure - Appellate Jurisdiction, Court of Appeal

Contracts - Implied Assignment - Article 2011, Louisiana Civil Code of 1870

Private Law: Prescription

Reconventional Demand

Criminal Neglect of Family

Establishment of Servitudes by Destination

Conflict of Laws - Jurisdiction Over Nonresidents - Constructive Service in Tort Action Arising Outside the State

Corporations - Right of a Stockholder to Inspect the Corporate Books

Property - Rights of Riparian Owners to Alluvion Formed as a Result of the Works of Man

No. 44,188-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * Versus * * * * * * * * * * * * * * *

STATE OF MICHIGAN COURT OF APPEALS

Constitutional Law - Search and Seizure - Hot Pursuit

v. Record No OPINION BY JUSTICE DONALD W. LEMONS September 17, 2004 NORFOLK SOUTHERN RAILWAY COMPANY, ETC.

No. 52,304-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * versus * * * * *

Rendition of Judgements

Transcription:

Louisiana Law Review Volume 15 Number 4 June 1955 Louisiana Practice - Application of the Exception of Res Judicata in Petitory Actions David M. Ellison Jr. Repository Citation David M. Ellison Jr., Louisiana Practice - Application of the Exception of Res Judicata in Petitory Actions, 15 La. L. Rev. (1955) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol15/iss4/24 This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kayla.reed@law.lsu.edu.

LOUISIANA LAW REVIEW [VOL. XV LOUISIANA PRACTICE-APPLICATION OF THE EXCEPTION OF RES JUDICATA IN PETITORY ACTIONS Plaintiff, having brought an unsuccessful petitory action in the federal courts' wherein it sought to be declared the owner of certain mineral rights, instituted a subsequent suit in the Louisiana district court based on a different cause of action against the same parties, again seeking recognition as the owner of the identical mineral interest. The trial court, sustaining the defendant's exception of res judicata, dismissed plaintiff's suit. On appeal, held; affirmed. The cause of action relied on by plaintiff in the instant case existed at the time of the prior suit and was within the knowledge of the plaintiff. Therefore, the exception of res judicata was properly sustained. Brown Land & Royalty Co. v. Pickett, 226 La. 88, 75 So.2d 18 (1954). Article 2286 of the Louisiana Civil Code of 1870 provides the requisites for the maintenance of the exception of res judicata. 2 In most cases the article is very strictly construed so that the exception will only be sustained when the thing demanded is the same, the demand is founded on the same cause of action, and the demand is between the same parties and formed by them against each other in the same quality as in the previous action. 3 In spite of the unambiguous language of article 2286, however, numerous decisions 4 can be found that apparently reflect the influence of the common law rule that 1. First suit was predicated on assertion that certain instruments executed by vendor's children were sufficient to create title in vendor of minerals claimed or to estop the children from denying such title. The instant suit was based on a contention that the warranty in vendor's deed to plaintiff's ancestor in title was binding against the children since they had tacitly accepted vendor's succession. Plaintiff alleged that this tacit acceptance was not within his knowledge at the time of the first suit. 2. Art. 2286, LA. CIVIL CoDE of 1870: "The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality." 3. Iselin v. C. W. Hunter Co., 173 F.2d 388 (5th Cir. 1949) (the exception of res judicata is stricti juris, and any doubt, as to identity of two claims must be resolved in favor of parties sought to be concluded by judgment); Durmeyer v. Streiffer, 215 La. 585, 41 So.2d 226 (1949); Elfer v. Marine Engineers Beneficial Ass'n, 7 So.2d 409 (La. App. 1942); Schexnayder v. Unity Industrial Life Ins. Co., 174 So. 154 (La. App. 1937). For an excellent discussion on res judicata, see Comment, Res Judicata-"Matters Which Might Have Been Pleaded," 2 LOUISIANA LAW REVIEW 347, 491 (1940). 4. E.g., Wells v. Files, 136 La. 125, 66 So. 749 (1914); Schwartz v. Siekmann, 136 La. 177, 66 So. 770 (1914); Choppin v. Union Nat. Bank, 47 La. Ann. 660, 17 So. 201 (1895); Trescott v. Lewis, 12 La. Ann. 197 (1857); Mc- MAicken v. Morgan, 9 La. Ann. 208 (1854).

1955] NOTES res judicata includes all matters that might have been raised and decided in the prior case. The apparent conflict between these decisions and the Code was discussed in Hope v. Madison, 5 where the court recognized certain situations in which res judicata includes that which might have been pleaded. 6 Thus, although our courts do not actually rely on the common law rule of res judicataj they recognize in certain types of cases 8 an exception to the general rule of article 2286 that "the demand must be founded on the same cause of action." The exception to this general rule was first applied in a petitory action in Shaffer v. ScuddyY It has since been applied consistently in cases involving subsequent petitory actions for the same property where (1) the parties are the same and appear in the same quality, and (2) titles or defenses urged in the second suit were available at the time of the original action."' A party to the original action, who subsequently acquires a new cause of action, will not be precluded from asserting it." Although the parties in a subsequent petitory action are different, an exception of res judicata may be sustained if there is a 5. 194 La. 337, 193 So. 666 (1940). 6. Hope v. Madison, 194 La. 337, 343, 193 So. 666, 667 (1940). The court recognized three exceptions to the strict application of the provisions of article 2286 which are as follows: (1) Breach of contract or single tort gives rise to but one cause of action. But see Quarles v. Lewis, 75 So.2d 14, 17 (La. 1954), where the court treated this not as an exception to article 2286 but as "judicial estoppel." (2) In seeking injunction against the execution of a judgment, or a writ of seizure and sale in executory process, a litigant must set out all grounds or reasons therefor which existed at the time of his application. (3) Parties litigant in a petitory action must set up whatever title or defense they have. 7. Woodcock v. Baldwin, 110 La. 270, 275, 34 So. 440, 441 (1902): "The doctrine of the common law courts that res judicata includes not only everything pleaded in a cause, but even that which might have been pleaded, does not obtain generally under our system." 8. See note 6 supra. But see Quarles v. Lewis, 226 La. 76, 75 So.2d 14 (1954); Himel v. Connely, 195 La. 769, 197 So. 424 (1940), which recognized additional exception in suits for partition or division of real estate. 9. 14 La. Ann. 575 (1859) (plaintiff had previously defended a petitory action brought by the present defendant by setting up title through X. Having been cast in the prior suit, he then brought this action, alleging title to the same property through Y; the court held that the prior judgment constituted res judicata to the second suit). See Comment, Res Judicata-"Matters Which Might Have Been Pleaded," 2 LOUISIANA LAW REVIEW 491, 498 (1940). 10. E.g., Adkins' Heirs v. Crawford, 209 La. 46, 24 So.2d 246 (1945); Gajan v. Patout & Burguieres, 135 La. 156, 65 So. 17 (1914); Lindquist v. Maurepas Land & Lumber Co., 112 La. 1030, 36 So. 843 (1903); Howcott v. Pettit, 106 La. 530, 31 So. 61 (1901); Brigot's Heirs v. Brigot, 49 La. Ann. 1428, 22 So. 641 (1897). 11. Buillard v. Davis, 185 La. 255, 169 So. 78 (1936) (purchases, allegedly made after a petitory action, could be subsequently relied on as new cause of action in second suit for title of same property as between same parties). See also Gajan v. Patout & Burguieres, 135 La. 156, 65 So. 17 (1914).

LOUISIANA LAW REVIEW [VOL. XV sufficient privity of interest between them and the original parties to the first suit. 1 2 The court, in Lindquist v. Maurepas Land & Lumber Co.,' 3 extended the scope of application of the exception of res judicata in petitory actions. In that case, the plaintiff (Lindquist) instituted a petitory action to be recognized as owner of certain swamp lands, basing his claim on rights acquired by possession under title held by the state with the intention of establishing a homestead. Previously, in a petitory action for the same property, a default judgment had been rendered against Lindquist, establishing title in the Maurepas Land & Lumber Company. The court, in sustaining the defendant's exception of res judicata, obviously felt that, although Lindquist had no absolute title at the time of the default judgment, he should have set up the outstanding title which existed in the state, and advanced his rights as a homesteader on the property. The effect is to require a party in the original real action to set up not only any absolute title or defense then existing in his favor, but also to advance any inchoate claims or rights in the property which might ripen into ownership. In the instant case two of the "identities" generally required for maintaining an exception of res judicata were present, but the cause of the action was not the same as that relied upon in the first petitory action. Relying on dictum found in Gajan v. Patout & Burguieres' 4 as a defense to the defendant's plea of res judicata, the plaintiff insisted that the cause of action on which it relied was not within its knowledge at the time of the original action. In effect, the plaintiff contended that parties litigant in a second petitory action are only precluded from urging those titles, defenses, and real rights that were within their knowledge at the time of the original petitory action. The court, however, expressly found that the plaintiff had knowledge at the time of the original suit of the cause of action on which it relied in the instant case and sustained the defendant's exception of res judicata. This ruling therefore leaves open the question of whether a cause of action which existed at the time of the original petitory action but was not within the knowledge 12. Heroman v. Louisiana Institute of Deaf and Dumb, 34 La. Ann. 805, 814 (1882) ("No principle of the law is more inflexible than that which fixes the absolute conclusiveness of such a judgment upon the parties and their privies."). See also Norah v. Crawford, 218 La. 433, 49 So.2d 751 (1950); Howcott v. Pettit, 106 La. 530, 31 So. 61 (1901). 13. 112 La. 1030, 36 So. 843 (1903). 14. 135 La. 156, 177, 65 So. 17, 25 (1914) ("At his command or within his knowledge"). See also Typhoon Fan Co. v. Pilsbury, 166 La. 883, 118 So. 70 (1928).

1955] NOTES 849 of the plaintiff at that time may form the basis of a new petitory action. 15 Although the rule as illustrated by the instant case, that res judicata includes that which might have been pleaded in a prior suit, constitutes a departure from the strict notions of res judicata as codified in Louisiana law, it is based upon sound reasoning. The reduction of unnecessary and harassing litigation, which is the objective of the doctrine of res judicata in any litigation, 16 is even more important in cases involving title to real property. The desirability of providing some measure of stability regarding title to real estate 7 is ample justification for the exception as applied in petitory actions. David M. Ellison, Jr. LOUISIANA PRACTICE-FILING OF DILATORY EXCEPTIONS-WAIVER OF EXCEPTION TO JURISDICTION Ratione Personae Plaintiff proceeded by nonresident attachment to be declared owner of a seized certificate to do business and for damages for loss of profits occasioned by the defendant's breach of contract to deliver the certificate. After denial of his motion to dissolve the attachment, defendant filed exceptions to the jurisdiction ratione personae and jurisdiction ratione materiae, requesting that these exceptions "be considered in accordance with their number and/or the order in which they appear." ' On rehearing of the appeal, held, affirmed. 2 Defendant's "exceptions to juris- 15. Numerous common law jurisdictions have held that where a plaintiff has no knowledge or means of knowledge of the omitted items, his ignorance will excuse him, and the judgment in the first action will not bar a subsequent action to recover on the omitted items. See cases collected in Annot., 2 A.L.R. 534 (1919). 16. Opelousas-St. Landry Securities Co. v. United States, 66 F.2d 41, 44 (5th Cir. 1933) ("Res judicata is a principle of peace. Under its influence an end is put to controversies."); Speakman v. Bernstein, 59 F.2d 523 (5th Cir. 1932) (general welfare and interests of state require that there be an end to litigation); State v. American Sugar Refining Co., 108 La. 603, 32 So. 965 (1902) (time should come when all litigation should cease). 17. Our law has traditionally sought to afford the highest protection to innocent third parties who purchase land, relying upon a recorded transfer or a final judicial determination of title. See Loranger v. Citizens' National Bank, 162 La. 1054, 111 So. 418 (1927); McDuffle v. Walker, 125 La. 152, 51 So. 100 (1909); Brown v. Johnson, 11 So.2d 713 (La. App. 1942). 1. Transcript of Record, p. 47, Garig Transfer, Inc. v. Harris, 226 La. 117, 75 So.2d 28 (1954). 2. On the first hearing, the court held that the defendant's submission of the two exceptions at the same time constituted a waiver of the exception to jurisdiction ratione personae and cited cases decided prior to the