Laenger v. Laenger

• Court: Louisiana Supreme Court
• Writing for the Court: O'NIELL, J.
• Citation: Laenger v. Laenger, 138 La. 532, 70 So. 501 (La. 1915)
• Decision Date: 29 November 1915
• Docket Number: 21459
• Parties: LAENGER v. LAENGER

70 So. 501

138 La. 532

LAENGER v. LAENGER

No. 21459

Supreme Court of Louisiana

November 29, 1915

Rehearing Denied January 10, 1916

SYLLABUS

(Syllabus by the Court.)

A judgment, sustaining an exception of no cause of action on the technical ground that the plaintiff omitted a necessary allegation, is, in effect, a judgment of nonsuit, and does not prevent the plaintiff's renewing his demand on sufficient allegations. On the other hand, a judgment sustaining an exception of no right of action, attacking the merits of the plaintiff's demand, assuming that his case is stated completely in his petition, and denying that the law affords the relief prayed for, is as conclusive of the issues presented as if the judgment had been rendered after an answer was filed and evidence heard.

A judgment, dismissing a suit on motion of the plaintiff's counsel after an exception of no cause or right of action was filed, but before an answer was filed or any issue submitted to the court for decision, has the same effect only as if the plaintiff's counsel had discontinued his suit, and has not the force or effect of res judicata.

The allegation that the plaintiff was induced to transfer his property to the defendant by the latter's false and fraudulent representation that the plaintiff was mismanaging jeopardizing, and wasting his estate does not support an action to annul the sale.

Where, in an actio to annul a contract of sale made by the plaintiff to the defendant, the plaintiff alleges that the received no consideration for the sale, but subsequently in his petition acknowledges that the defendant paid part of the credit portion of the price stated in the act of sale, he cannot maintain that the transfer was a mere simulation.

Where the plaintiff, in an action of nullity for lesion, alleges in his petition that the contract of sale was made and dated more than four years before the filing of his suit, an exception of no cause or right of action is an appropriate plea in bar of the action of nullity for lesion, under the provision of the Civil Code that actions for lesion are limited to four years from the date of the contract.

Mabry & Foster, of Shreveport, for appellant.

Barnett & Keeney, of Shreveport, for appellee.

OPINION

O'NIELL, J.

This is a suit to have a sale of real estate by the plaintiff to the defendant decreed null, on the ground that the price stated in the deed was not paid and that no other consideration was paid or given, and, in the alternative, to annul the sale for lesion beyond moiety, on the allegation that the price, if any was paid, was less than half the value of the property. The plaintiff alleges that the transfer was a mere simulation, which the defendant and her husband induced him to sign by the false and fraudulent representations that he, plaintiff, was wasting, mismanaging, losing, and jeopardizing his property and that it was to his interest that he should transfer the title to the defendant (his aunt), to be reconveyed to him when the rents would have paid the debts secured by certain mortgages and a pavement lien. The plaintiff alleges that the defendant has arbitrarily refused to carry out a verbal promise to reconvey the property to him.

The suit was met by a plea of res judicata, founded upon a judgment rendered by the same court in which the present suit was filed, dismissing a former suit between the same parties, on the same cause of action and for the same primary and alternative relief that is demanded in this suit. The plea of res judicata was overruled. The defendant reserved a bill of exceptions to the ruling, and then filed a demurrer or an exception of no cause or right of action, which was sustained.

The plaintiff has appealed and in answer to the appeal, the defendant prays that the plea of res judicata be sustained, and, in the alternative, that the judgment sustaining the exception of no cause or right of action be affirmed.

The exception of no cause or right of action was filed in the first suit on the 10th of February, 1915; and, under date the 24th of that month appears the minute entry:

'On motion of counsel for plaintiff, this suit is dismissed at plaintiff's cost.'

The appellee takes the position that the judgment dismissing the first suit had the effect of maintaining her exception of no cause or right of action, and is a bar to this suit on the same cause of action. The appellant, on the other hand, contends that a judgment sustaining an exception of no cause of action cannot be the basis of a plea of res judicata.

Opinion.

There are two distinct classes of exceptions of no cause or right of action in our practice. One is founded upon the omission from the plaintiff's petition of a necessary allegation of fact, which, though not alleged, may nevertheless exist. The other, based upon a complete statement of the case in the plaintiff's petition, denies that the law affords the relief prayed for. The distinction is observed in the effect of a judgment sustaining an exception of the one class or the other, and was recognized by this court in Baker v. Frellsen (on rehearing), 32 La.Ann. 829, and in Oglesby v. Turner, 124 La. 1084, 50 So. 859, and 127 La. 1094, 1095, 54 So. 400, by the Supreme Court of Tennessee in the case of Moore v. Chattanooga Ry. Co., 119 Tenn. 710, 109 S.W. 497, 16 L. R. A. (N. S.) and by the Supreme Court of the United States in Northern Pacific Ry. Co. v. Slaght, 205 U.S. 128-133, 27 S.Ct. 442, 51 L.Ed. 738. Some authorities distinguish these demurrers by calling the former the exception of no cause of action and the latter the exception of no right of action.

A judgment sustaining an exception of no cause of action, because of the plaintiff's omission of a necessary allegation is not a bar to another suit on sufficient allegations. See Hart v. Bowie, 34 La.Ann. 326; Succession of Herber, 119 La. 1064, 44 So. 888; New York Mercantile Co. v. W. M. Cady Lumber Co., 133 La. 729, 63 So. 304; Carolina Portland Cement Co. v. Southern Wood Distillates & Fiber Co., 137 La. 469, 68 So. 831. But a judgment sustaining an exception of no right of action, aimed at the merits of the plaintiff's demand, and assuming the case to be stated completely in the petition, is a basis for the plea of res judicata, the same as if the judgment had been rendered on evidence in the case. See Northern Pacific Ry. Co. v. Slaght, 205 U.S. 128-133, 27 S.Ct. 442, 51 L.Ed. 738, and authorities there cited; Oglesby v. Turner, 124 La. 1084, 50 So. 859, and 127 La. 1094, 1095, 54 So. 400. Res judicata, in the cases last cited, was said to result from the doctrine of the following cases, that it matters not in what form of proceeding the question is presented, whether by answer or exception to the petition, when once decided, it is res judicata between the parties to that proceeding, and is a complete bar to another demand for the same thing on the same cause of action, viz: Plicque & Le Blanc v. Perret (Peain, Intervener), 19 La. 318; Heroman v. Institute, 34 La.Ann. 805; Broussard v. Broussard, 43 La.Ann. 921, 9 So. 910; Tutorship of the Scarborough Minors, 44 La.Ann. 288, 10 So. 858; McNeely v. Hyde, 46 La.Ann. 1084, 15 So. 167.

As the exception of no cause or right of action was aimed at the merits of the first suit, and as the petition in the case before us contains substantially the same allegations that were made in the former suit, we would hold that the plea of res judicata should have prevailed in this case if the judgment in the first suit had disposed of the question of the plaintiff's cause or right of action. But the minutes of the trial court do not show that the case was submitted for decision on the exception of no cause or right of action. The judgment dismissing the first suit was rendered on motion of plaintiff's counsel, and its force and effect must be determined without regard to the demurrer or exception that had been filed.

Article 491 of the Code of Practice provides:

'The plaintiff may, in every stage of the suit previous to judgment being rendered, discontinue the suit on paying the costs.'

And article 492 provides:

'After discontinuing the suit, the plaintiff may bring the action anew; provided he has paid the costs of the first suit.'

In this instance, the plaintiff did not expressly discontinue his first suit. On his motion, it was dismissed, without any qualification such as without prejudice, as in case of nonsuit, or other express reservation of his right to file another suit on the same cause of action. And the question arises whether there is a difference in the effect of the plaintiff's discontinuing his suit and his having it dismissed without any express reservation.

The courts of other jurisdictions agree that there is no difference in the effect of a discontinuance and a dismissal of a suit on the plaintiff's motion before issue is joined or the case submitted for decision on a demurrer. In Thurman v. James, 48 Mo. 235, and in English v Dickey, 128 Ind. 174, 27 N.E. 495, 13 L. R. A. 40, it was held that 'discontinuance' and 'dismissal' are synonymous terms. In Dowling v. Polack, 18 Cal. 625 (quoted with approval in Lewis v. Smith, 21 R. I. 324, 43 A. 542), it was said that, in effect, a dismissal is a final judgment in favor of the defendant in the action in which it was rendered, but does not preclude the plaintiff from bringing another suit on the same cause of action. To the same effect was the decision of the Court of Appeals of Texas, in Brackenridge v. State, 27 Tex.App. 513, 11 S.W. 630, 4 L. R. A. 360. In Haldeman v. United States, 91 U.S. 584, 23 L.Ed. 433, it was held that a judgment, reading, 'that the suit is not prosecuted and be dismissed,' was a judgment of nonsuit, although, as the court...