Fix v. Koepke

44 La. Ann. 745

• Court: Supreme Court of Louisiana
• Decided: May 15, 1892
• Docket: No. 10,923
• Status: Published

Opinions

The opinion of the court was delivered by

McEnery, J.

This is a suit for a partition of the property inherited by plaintiff and defendant from a common ancestor, and held in indivisión by them.

The defendant excepted to the petition on the ground that it did not disclose the place of residence of the plaintiff, the place where the property is situated, and the value of the property to be partitioned.

With leave of the court, before the exception was tried, an’amended petition was filed,.which cured these defects.

The amended petition did not alter the substance or character of the demand; and only cured the defects or errors in general allegations and was therefore permissible.

The order granted by the court on the filing of the first petition can not, therefore, be set aside because of the want of jurisdiction alleged in the exception.

The amended petition gave vitality to the original one as though it was perfect when filed.

The amended petition was excepted to on the ground that gave rise to the first exception, the idea being that for want of proper jurisdictional allegations in the first petition the court could do no act, except to dismiss the suit. As above stated the amended petition cured the defects in the original.

The second, third, fourth and fifth grounds in the exception, that the court, because of the alleged want of jurisdiction could not issue a writ of sequestration prayed for by the defendant in the amended petition, are therefore without merit.

. A supplemental petition was filed by the administrator of the plaintiff, who had died pending the suit, alleging the nullity of certain tax sales of properties which were adjudicated to the defendant.

It will not be necessary to notice the exception filed' by the defendant, as he states in his testimony that he let the. property go to tax sale and purchased it, thinking that in this way he could reduce the amount owing for taxes.

He was the agent for plaintiff and held the property, and he says his purchase was for their joint benefit.

The judgment appealed from is in conformity to the evidence, and based upon the facts mainly furnished by the defendant.

Judgment affirmed.