Bedford v. Shelton

18 La. Ann. 40

• Court: Supreme Court of Louisiana
• Decided: January 15, 1866
• Status: Published

Opinion

Hvman, C. J.

Plaintiff brought suit to rescind the sale of a slave for redhibitory vices, and to recover the principal for the same, with damages.

Defendant, Lewis N. Shelton, called in warranty James R. Shelton, his warrantor.

The Judge rendered judgment in favor of plaintiff, against John C. Barrelli, as the universal legatee of Lewis N. Shelton, and in favor of Barrelli against James R. Shelton.

Barrelli has appealed.

This suit has to be remanded to make proper parties thereto.

Previous to the trial, plaintiff suggesting to the Court that Lewis N. Shelton had died, and that Barrelli was the universal legatee of the deceased, obtained an order of Court to make him, Barrelli, a party to the suit.

No notice of the suit, or of this order, was served on Barrelli. He filed no answer. His first appearance was on a motion asking permission to appeal from the judgment.

The mode provided by law to make an heir a party to a suit has not been pursued.

The notice required by Article 120 of the Code of Practice should have been served on him.

Before such notice is given, or before he appears, he is not a party.

Judgment of the District Court is reversed and annulled, and the case remanded to the lower Court, to be proceeded in according to law, plaintiff to pay cost of suit.