Grubbs v. Pierson

35 So. 474, 111 La. 101, 1903 La. LEXIS 499

• Court: Supreme Court of Louisiana
• Decided: February 2, 1903
• Docket: No. 14,694
• Status: Published

Opinions

On Motion to Dismiss the Appeal.

BREAUX, J.

Plaintiff obtained a writ of injunction to restrain Widow Fahey, administratrix, from proceeding with the sale of certain immovable property, of which he claims to be the owner, and asked that she and Alfred Pierson be cited contradictorily, with whom he wishes to be recognized as owner of the property, on the ground that defendants had no right as owners, that Pierson was only an interposed party, and that he (plaintiff) was the owner.

Pierson, in his answer, admitted that he was only the nominal purchaser from Fahey, the late husband of the administratrix.

Mi's. Fahey, the administratrix, answered, controverting plaintiff’s demand at first. Afterward, in a subsequent or a second answer, she averred that the property had been sold prior to plaintiff’s suit, without her knowledge, for taxes, and that she was no longer the owner. Whereupon the judge of the district court perpetuated the writ of injunction which had been issued, and decreed plaintiff to be the owner of the property in dispute, and further authorized plaintiff to obtain the cancellation of the mortgage inscription thereon.

The administratrix applied for a new trial, averring substantially that the judgment was broader than defendants’ admissions warranted. Motion for a new trial was overruled. From the judgment the administratrix appeals.

In this court plaintiff moves to dismiss the appeal on the ground that the defendant and appellant, Mrs. Fahey, has by her disclaimer confessed judgment, as appears by her pleadings.

We have examined the record, and left it not convinced that we should at this time dismiss the appeal. Unless it clearly appears that the appeal should be dismissed, the motion for its dismissal should not prevail, under repeated decisions. It must be referred to the merits on the appeal.

We think this motion should not be acted on at this time. If there is good ground for its dismissal, the appeal will in time be dismissed. It will be time enough to consider that matter after the case will have been examined in all of its details.

At this time we must decline to sustain the motion to dismiss.

The motion will be considered with the merits of the appeal.