Egle v. Kidd

442 So. 2d 669
CourtLouisiana Court of Appeal
DecidedNovember 22, 1983
Docket83 CA 0202
StatusPublished
Cited by8 cases

This text of 442 So. 2d 669 (Egle v. Kidd) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Egle v. Kidd, 442 So. 2d 669 (La. Ct. App. 1983).

Opinion

442 So.2d 669 (1983)

Edna Zeringue EGLE, et al.
v.
Roland KIDD, Jr., et al.

No. 83 CA 0202.

Court of Appeal of Louisiana, First Circuit.

November 22, 1983.

*670 Victor J. Versaggi, Patterson, for plaintiffs-appellees.

Edward M. Leonard, Jr., Morgan City, for D.C. Walsh Co., appellee.

Edward J. Milligan, Jr., Lafayette, for Roland Kidd, Jr., et al., defendants-appellants.

Before COVINGTON, COLE and SAVOIE, JJ.

COVINGTON, Judge.

This is an appeal by Roland Kidd, Jr., Robert C. McHugh, Clifford Dressel and D.C. Walsh Company, Inc., plaintiffs, from a judgment in favor of Nell Egle Brown and Marilyn Egle Sonnier,[1] defendants, dismissing plaintiffs' petitory action.[2]

The trial court, assigning written reasons, granted defendants' motion for directed verdict, and dismissed plaintiffs' suit.

On appeal, plaintiffs argue that the trial court erred in granting a directed verdict, and in failing to find that plaintiffs had proved their title to the disputed property. We affirm the decision of the trial court.

This appeal arises out of a possessory action that was converted into a petitory action by the Kidd group, and involves a 100-acre tract of land in Assumption Parish, described as:

That certain tract or parcel of land containing One Hundred (100) acres, more or *671 less, and more fully described as being the south one-half (S/2) of the southwest one-quarter (SW/4) of Section Thirty-six (36) and a fractional portion of Section Thirty-five (35), Township 13 South, Range 12 East, East of Belle River, and bounded on the North by lands of Gaspar, South by lands of Sulia Gaudet and/or M. Michel (now or formerly), West by Belle River and East by lands now or formerly of Brownell-Drews Lumber Company, Ltd.

This controversy centers around a disposition in the will of Gus Drews. In his last will and testament, Gus Drews made a testamentary disposition to R.E. Kidd, of "Birnley Place" or Plantation, which was located in Assumption Parish, Louisiana, and named his brother, William Drews, and his sister, Ella Drews Kidd, the residuary legatees.

Ella Drews Kidd was married but once, and then to R.E. Kidd, and of this marriage six children were born, Hugh Kidd, Roland Kidd, Arleigh Kidd, Douglas Kidd, Margaret Kidd Siener and Ella Kidd. Two of the six children born to Ella Drews Kidd and R.E. Kidd had children of their own. Hugh Kidd, had one son, Hugh Kidd, Jr. Roland Kidd (Sr.) had two children, Margie and Roland Kidd, Jr. Douglas, Arleigh, and Ella Kidd were never married and they had no children. Margaret Kidd Siener was married once, divorced, and had no children. William Drews was married but once and to Gazina Becker, and of this marriage three children were born, William Drews, Jr., Edna Drews Cox and Grace Drews Lehmann. Ella Drews Kidd and R.E. Kidd died intestate survived by their six children who were sent into possession by judgment dated June 29, 1945.

Before evaluating the facts and the law to make a determination of the issues involved herein, we observe that the motion for directed verdict in this non-jury case was filed and granted at the close of the plaintiffs' presentation of evidence.

Pursuant to LSA-C.C.P. art. 1810 B,[3] in an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party may move for dismissal of the action on the ground that upon the facts and law, the plaintiff has failed to show a right to relief. The court may, after determining the facts and applying the law, render judgment in favor of the mover.

In non-jury cases, such as the instant case, the appropriate standard for the trial court's determination of a motion for directed verdict is whether plaintiff has presented sufficient evidence on his case-in-chief to establish his claim by a preponderance of the evidence. In making its determination on such a motion, the trial court is not required to review the evidence in the light most favorable to plaintiff, but may, based upon a preponderance of the evidence, render judgment in favor of the mover. Moreover, the directed verdict in a non-jury case should not be reversed in the absence of manifest error. Thomas v. Thom, 408 So.2d 442 (La.App. 1st Cir.1981), writ denied 412 So.2d 85 (La.1982).

In Bradley v. Hunter, 413 So.2d 674, 676 (La.App. 3rd Cir.1982), writ denied 415 So.2d 952 (La.1982), the Court stated:

When a motion for a dismissal is filed under this provision, the proper standard to be applied by the trial court, in ruling upon the motion, differs from the standard to be used when a motion for a directed verdict is filed in a jury trial. In a non-jury trial, the trial judge, upon a motion under art. 1810(B) for a judgment of a dismissal (upon completion of the plaintiff's case), must weigh and evaluate all of the evidence presented up to *672 that point in the trial and must grant dismissal if the plaintiff has not established proof by a preponderance of the evidence. Semien v. PPG Industries, Inc., 413 So.2d 956 (La.App. 3rd Cir. 1982); Murray v. Haspel-Kansas Investments, 395 So.2d 453 (La.App. 4th Cir. 1981). (footnote omitted.)

The burden of proof in the petitory action is provided in LSA-C.C.P. art. 3653 as follows:

To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:
(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof. When the titles of the parties are traced to a common author, he is presumed to be the previous owner.

Plaintiffs in a petitory action must recover on the strength of their own title, not on the weakness of that of their adversaries. Schutten v. Orleans Parish Levee District, 320 So.2d 605 (La.App. 4th Cir. 1975), writ denied 323 So.2d 806 (La.1976).

At trial, the plaintiffs introduced a number of exhibits and elicited testimony in their attempt to prove title. The exhibits and testimony reveal that the property in dispute was acquired by Gus Drews from Newton J. Foote in December of 1901. The ownership of Gus Drews is undisputed, and he is the common author in title. The will of Gus Drews, in olographic form, dated September 16, 1919, was filed in evidence. Gus Drews died testate on January 13, 1923, leaving property described as the "Birnley Place" to his brother-in-law, R.E. Kidd. The remainder of the deceased's property was left to his brother, William Drews, and his sister, Ella Drews Kidd, the wife of R.E. Kidd. By instruments referred to as Acts of Relinquishment and Ratification in November, 1936, the heirs of William Drews, the surviving spouse of William Drews and heirs of Ella Drews Kidd (but see footnote 4, infra) conveyed to R.E. Kidd, his heirs and assigns, "Birnley Place" and included the disputed 100 acres of land on Belle River.

Plaintiffs proof of their record title consisted of the following:

(1) Deed dated December 28, 1901, from Newton J. Foote to Gustave Drews (Gus), several tracts of land in Assumption Parish, including the subject property.

(2) Judgment putting universal legatees in possession dated March 14, 1923. William Drews and Ella Drews Kidd, in the proportion of one-half each, are named universal legatees.

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