Rochelle v. Alvarez

8 Mart. (N.S.) 171

• Court: Supreme Court of Louisiana
• Decided: June 15, 1829
• Status: Published

Opinion

Martin, J.

delivered the opinion of the court. The plaintiffs, stating that they were the owners and possessors of a negro whom the defendant wrongfully took from them, prayed to be maintained in their possession: they obtained a writ of sequestration.

The defendant pleaded the general issue; and averred himself the true and lawful proprietor of the slave.

Rochelle having died, his heirs and the other plaintiff filed a supplemental petition, without averring that Rochelle and Shiff were the purchasers and owners of the slave, that the defendants title was fraudulent and null: the petition concludes, by the declaration that they persist in the conclusions of the former petition.

The plaintiffs were non-suited and appealed.

Their counsel has first drawn our attention to a judgment by which their supplemental petition was set aside, on the ground that it changed a possessary into a petitory action.

Moreau & Soule for the plaintiffs—Canon for the defendant.

We think the perish judge erred: the supplemental petition, containing no new demand, could not change the nature of the action. The original petition concludes with a prayer, that the plaintiffs might be maintained in their possession of the slave; the supplemental one declared, after stating new facts, that the plaintiffs persisted in the conclusions; in other words, in what they had prayed for, in the original petition.

Actions take their character from the nature of the relief sought. Code of practice, 43, 46.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed, that the supplemental petition be reinstated, and the case remanded for further proceedings, the defendant and appellee paying costs in this court.