Same Case on Second Appeal

Louisiana Court of Appeal

Same Case on Second Appeal

1 Gunby 43

DecidedJuly 1, 1885

StatusPublished

This text of 1 Gunby 43 (Same Case on Second Appeal) 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

Same Case on Second Appeal, 1 Gunby 43 (La. Ct. App. 1885).

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Opinion

Clinton, J.

Creditors cannot claim the annulment of their debtor’s transactions, either by the revocatory action, or the action en declaration de simulation, without alleging the insolvency of their debtor or that he has no other property out of which their debt can be made. A failure to make these specific allegations will justify the Court in sustaining the exception of no cause of action which may be filed at any time before final judgment. Hart vs. Bowie, 34 An. 323; Willis vs. Scott, 32 An.

2. Where one defendant has riled a certain exception on which the suit has been dismissed as to his co-defendants, and, on appeal by plaintiffs, the exception is overruled and the case remanded, it will be improper and illegal for another defendant to file the same exception in the District Court. The decision of the Circuit Courtis final and 'res adjudicata as to all parties to the appeal, not only as to pleas and defenses filed by them, but as to all the questions decided in the case.

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Clinton, J.

Creditors cannot claim the annulment of their debtor’s transactions, either by the revocatory action, or the action en declaration de simulation, without alleging the insolvency of their debtor or that he has no other property out of which their debt can be made. A failure to make these specific allegations will justify the Court in sustaining the exception of no cause of action which may be filed at any time before final judgment. Hart vs. Bowie, 34 An. 323; Willis vs. Scott, 32 An.

2. Where one defendant has riled a certain exception on which the suit has been dismissed as to his co-defendants, and, on appeal by plaintiffs, the exception is overruled and the case remanded, it will be improper and illegal for another defendant to file the same exception in the District Court. The decision of the Circuit Courtis final and 'res adjudicata as to all parties to the appeal, not only as to pleas and defenses filed by them, but as to all the questions decided in the case.

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Bluebook (online)

1 Gunby 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/same-case-on-second-appeal-lactapp-1885.