Cloud v. Cloud

• Citation: 127 So.2d 560
• Decision Date: 30 January 1961
• Docket Number: No. 173,173
• Parties: Dillard C. CLOUD et ux., Plaintiffs-Appellants, v. Jimmy CLOUD et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 560

127 So.2d 560

Dillard C. CLOUD et ux., Plaintiffs-Appellants, v. Jimmy CLOUD et al., Defendants-Appellees.

No. 173.

Court of Appeal of Louisiana, Third Circuit.

Jan. 30, 1961.

Rehearing Denied En Banc March 15, 1961.

Maurice T. Mouton, William Ray Bradford, Jr., Alexandria, for plaintiffs-appellants.

Vincent Hazleton, Alexandria, for defendants-appellees.

Before TATE, FRUGE , and HOOD, JJ.

TATE, Judge.

The plaintiffs, a judgment debtor and his wife, sue to set aside the sheriff's sale of certain property alleged to have been their homestead and thus exempt from seizure. Article XI, Section 1, Louisiana Constitution, LSA-Const. The principal defendants are the seizing judgment creditors and the purchaser. The plaintiffs appeal from judgment dismissing their suit upon an exemption of no cause of action.

I.

In this court the defendants-appellees have filed a motion to dismiss the appeal, since the return day for plaintiffs' appeal was June 17, 1960, while the record was not filed in the court of appeal until September 30, 1960.

From the pleading, admissions, and documentary exhibits, the primary reason for this failure was the inadvertent omission of a minute clerk ad hoc to note the plaintiffs' oral motion and the consequent order of appeal in the civil clerk' minute book at the time that the appeal was taken in open court on April 22, 1960. The appeal was taken to the Second Circuit Court of Appeal, which had jurisdiction of it prior to the effective date (July 1, 1960) of the revision of the appellate court structure of this State (Act No. 561 of 1958, as ratified by the people, amending various sections of Article VII of our Constitution; see especially Article VII, Sections 20, 21, 30), and it was transferred by that court to us as authorized by law (see Act No. 593 of 1960).

The applicable law at all times in the First, Second and Third Circuits was and is that it is the clerk of the trial court's duty to prepare the record and lodge it timely in the appellate court and that his failure to do so will not prejudice the appeal (Article 2127, Code of Civil Procedure (1960); ¹ LSA-R.S. 13:4438, as amended by Act No. 38 of 1960; Stockbridge v. Martin, 162 La. 601, 110 So. 828; Davis v. Davis, La.App. 2 Cir., 23 So.2d 651), "in the absence of some showing to the effect that a failure to file the transcript in time is due to some fault on the part of the appellant or his attorney," Thibodeaux v. Pacific Mutual Life Ins. Co., La.App. 1 Cir., 95 So.2d 183, 184.

Although the appellees also rely upon a statement in a written motion of September 15, 1960 by the attorney for the appellants that the appeal was not lodged in the appellate court 'through error of movers,' the attorney for appellant has explained--as is evident from the context of the statement in the motion--that such statement was a typographical error and was intended to be that the appeal had not been timely lodged 'through No error of movers'.

The motion to dismiss the appeal is therefore denied.

II.

The principal question on the merits of this appeal concerns whether the plaintiffs properly asserted their homestead exemption so as to have a cause of action to maintain this and a companion suit (Cloud v. Wells, 127 So.2d 572) to annual sheriff's sales for a sum less than the constitutionally exempted value of what the plaintiffs claim to have been their homestead. These suits were dismissed upon exceptions of no cause of action.

The pleadings and documents admitted without objection show the following:

The plaintiff Cloud was cast for a large sum as defendant in a wrongful death action instituted in the Thirty-First Judicial District Court for Allen Parish. See Sales v. Cloud, La.App. 1 Cir., 88 So.2d 251. Subsequently, the judgment was acquired by the present seizing judgment creditors made defendants herein, and they caused writs of fieri facies to issue from the Allen Parish court to the sheriff of Rapides Parish. That sheriff then seized certain properties owned by the defendant Cloud in Rapides Parish.

The present suit and its companion proceeding, Cloud v. Wells,supra, were filed in the Ninth Judicial District Court for Rapides Parish. This suit is to annual the sheriff's sale under the writs of a 23-acre tract sold after due advertisement for $1300 on November 21, 1959; it was filed in Rapides Parish three days later, or on November 24th. The companion suit, Cloud v. Wells, supra, is to annual the sheriff's sale for $500 on December 9, 1959 of a residence, out-buildings and other appurtenances located on adjacent leased premises; that suit to annul that sale was likewise filed three days after its sale, or on December 12th. Thus the properties claimed by the plaintiffs as their homestead were sold for a total of $1,800--that is, less than the constitutionally exempted value of $4000. ²

On November 20, 1959, immediately Before the sale, the plaintiffs filed a petition and third opposition in the Allen Parish proceedings alleging that the property seized and offered for sale on the two separate dates was a homestead under constitutional 'exemption to the extent and in the amount of four thousand dollars' (Art. 9), in which the plaintiffs prayed for service and citation upon the Rapides Parish sheriff and also upon the seizing judgment creditors. Service of this petition was accepted the same day, also before the sale, by the Rapides Parish Sheriff. (We will advert to this third opposition in more detail later, as it is upon the basis of this pleading that we have concluded that the plaintiffs timely and adequately asserted judicially their right to the constitutional exemption from seizure and sale of their homestead for a sum less than four thousand dollars.)

To the presently appealed Rapides Parish suits to annual the Rapides Parish judicial sales of November 21st and December 9th respectively, the defendants initially filed exceptions of lis pendens, urging that the third opposition then still pending in the Allen Parish suit had the same object and was based upon the same cause of action so that the present Rapides Parish suits should be dismissed. These exceptions were tried on March 4, 1960, following which (later the same day) plaintiffs' counsel secured from the Thirty-First Judicial District Court a judgment of dismissal of the third opposition (which, as noted, had been filed in the Allen Parish proceedings prior to the sheriff's sales). Upon this attorney's filing herein a certified copy of this judgment of dismissal, the exceptions of lis pendens filed by the defendants in these Rapides Parish suits were immediately overruled on March 9th.

The defendants then filed exceptions of no cause and right of action to these present suits to annual the sheriff's sales. These exceptions were based upon the plaintiff's failure to allege affirmatively that the homestead exemption had been formally claimed prior to the sheriff's sales. Upon the trial of the exceptions, plaintiffs' trial counsel contended solely that oral representations of homestead rights made at the commencement of each of the sheriff's sales had sufficiently preserved the homestead exemption and that a 1938 constitutional amendment to Article XI, Section 1 had made inapplicable previous jurisprudence that the exemption is forever lost unless formally claimed before the execution sale; contentions with little merit, see Acosta v. Whitney Nat. Bank, 1948, 214 La. 700, 38 So.2d 391. The trial court accordingly sustained the exceptions and dismissed both suits.

Upon appeal, however, the plaintiffs now urge that they had in fact by formal judicial pleadings claimed the homestead exemption prior to the sheriff's sales, both by the third opposition in the Allen Parish proceedings and also by petition in bankruptcy in the United States District Court unsuccessfully (since the state court seizure had already taken place) seeking to prohibit the forthcoming sales of their homestead; as well as by having orally announced at the commencement of each of the judicial sales sought to be annulled that they had claimed and were claiming as their homestead the properties about to be sold.

In connection with this argument the plaintiffs have also filed motions to remand to allow amendment of their pleadings to allege these additional facts. If not otherwise objectionable, however, the facts adverted to can be assumed for present purposes to have been pleaded (however much subject to an exception of vagueness) by Article 4 of the plaintiffs' present petitions that they 'have claimed and do hereby claim the said homestead, the exemption or claim accuring (sic) to them by virtue of the laws of Louisiana'; since, for purposes of deciding an exception of no cause of action, all doubts as to the sufficiency of the allegations should be resolved in favor of the pleader, and the exception should be overruled unless it clearly discloses a lack of a cause of action. Lusco v. McNeese, La.App. 1 Cir., 86 So.2d 226; Meadows v. Preferred Acc. Ins. Co., La.App. 2 Cir., 49 So.2d 765.

For reasons shortly to be set forth, we find that the plaintiffs made sufficient and timely formal claim to their homestead exemption by the petition of third opposition filed by the plaintiffs in the Allen Parish proceedings on November 20th, prior to the sheriff's sales of November 21st and December 9th here sought to be annulled, which petition of third opposition was still pending at the time the present suits were filed. ³ We find this to be the legal effect of this third opposition, despite the very strong and most persuasive arguments of able counsel for the defendants-appellees (a) that the filing of the third opposition, by claiming the proceeds of the judicial sales, prevents the plaintiffs from afterwards attacking the sales for nullities and (b) that by afterwards dismissing their third opposition the plaintiffs had abandoned whatever claim to the homestead exemption they may have...