Dubroca v. Her Husband

3 La. Ann. 331

Opinion

The judgment of the court was pronounced by

King, J.

*

In the suit of the plaintiff against her husband, V. Dubroca, for a separation of property, LeBlanc and McCalop intervened, and prayed for judgments against the defendant for the amount of several promissory notes, and that the plaintiff’s claim should be rejected. The judge permitted the interventions to be filed, but refused to delay the trial of the .cause for the purpose of enabling the intervenors to cite the original parties, and the intervenors took a bill of exceptions. Subsequently, but daring the same term of the court, an agreement was entered into and filed in the suit, by which the intervenors waived their opposition -to the cause being then tried, in .consideration of which the plaintiff agreed that, in executing such judgment as she might obtain against her husband, as far as she wasconcerned, the land, slaves, and moveable property should be sold separately. Tile cause proceeded to trial, and the plaintiff obtained a judgment for a large sum. At a subsequent term of the court the intervenors applied for judgments by default against the original parties to the suit, to which the latter objected, on the ground, that the suit was at an end, a final judgment having been previously rendered. The objection was at first sustained, but the judge subsequently reconsidered his opinion and permitted defaults to be entered. To this ruling, abill of exceptions was taken. The plaintiff and defendant filed answers. The latter denied that any consideration had been given for the notes. On the trial of the interventions the judge considered that the intervenors had failed to prove the consideration of the notes, and rendered a judgment as in case of non-suit. Tile intervenors have appealed, and ask the reversal of both judgments. They contend that the property was sold in block under the plaintiff’s judgment, in violation of the agreement; and that they were authorized, by reason of this breach of the engagement, to proceed at a subsequent term of the court to final judgment on their interventions, and to show the insufficiency of the testimony to sustain the judgment obtained by the plaintiff.

The suit being one by a wife against her husband for a separation of property, the intervenors were entitled, under the rulé established in the case of Ardry v. Ardry, 16 La. 264, to the delays necessary for serving citations upon the original parties, and for the latter to answer, although the effect might have been to retard the progress of the cause. If this right had been insisted upon by the intervenors they would have been entitled to a reversal of the judgment, and to have the cause remanded in order that they might be heard. But they waived their right to be heard when the principal action was tried, and permitted final judgment to be rendered. The judge is expressly required to pronounce upon the mei’its of the intervention, at the same time that he decides upon the principal action. C. P. art. 394. The waiver by the intervenors of their right to oppose the progress of the cause,.and their consent that it should proceed to judgment, was equivalent to a withdrawal of the intervention. The judge, under the express renunciation by the intervenors of their right lo be heard, was dispensed from pronouncing upon their intervention at the only time when legally he could have pronounced upon it, to wit, when deciding upon the principal action. The final judgment, which he was thus permitted unopposed to render between the principal parties, terminated the suit. There was no longer an action pending, in which third persons could intervene. If, as is alleged, the agreement under which the interventions were withdrawn, was subsequenlly violated, the effect of this breach of the contract was certainly not to set aside the judgment, and reinstate the parties as they stood before the court at the date of the agreement. The remedy of the intervenors is by a separate action.

We think that the judge erred in enlertaing the intervention after a judgment had been rendered between the principal parties; but the demands of the intervenors having been dismissed, on the trial on the merits, as in case of non-suit, the rights of the parties are left in the same position that they would have been if he had declined to consider the interventions, and it does not become necessary to disturb the decree. We are not to be understood as assenting to the correctness of the ground upon which the district judge rejected the claims of the intervenors. The notes, upon which their interventions were founded, express that they were given for value. The denial of the consideration, unsupported by evidence of any kind, was not sufficient to impose upon the intervenors the burthen of proving the consideration. Bradford v. Cooper, 1 An. Rep. 326. Judgment affirmed.

Eostis, C. X. did not sit on tho trial of this caso, on account of relationship to one of ihe parties.