Neal v. Hall
| Decision Date | 31 October 1946 |
| Docket Number | 6938 |
| Citation | 28 So.2d 131 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | NEAL v. HALL. |
Rehearing Denied Nov. 25, 1946.
R J. Newson, of Shreveport, for appellant.
Cook Clark & Egan, of Shreveport, for appellee.
Plaintiff, a licensed realtor, seeks to hold W. E. Hall, the defendant responsible to him for commissions allegedly due him for procuring purchasers of one thousand six hundred twenty (1,620) acres of land in Bossier Parish, owned jointly by the defendant and nine other persons. Defendant is sought to be held liable for the commissions on the theory that in dealing with plaintiff and employing him to find a purchaser of the property, he failed to disclose that he was acting as agent, and, therefore, did not disclose the identity of his principals.
Defendant in limine litis tendered an exception of non-joinder. He alleged therein that he did disclose to plaintiff his agency and the names of those whom he represented at the time of the transactions upon which plaintiff's alleged right to the commissions is based. The names of all persons for whom he says he was acting in dealing with plaintiff are set forth in the exception. He prayed that plaintiff be ordered to amend his petition and implead the named co-owners. Testimony was adduced on trial of the exception which consisted only of that of plaintiff and defendant. Some documentary evidence was introduced. The exception was sustained and plaintiff was allowed fifteen days in which to amend and implead the nine parties above mentioned. This was in effect an order to amend or suffer dismissal of the suit. Application for rehearing was denied. After the lapse of the fifteen days given plaintiff to amend, he not having done so, defendant moved for a dismissal of the suit on the ground that plaintiff had not complied with the court's order. This motion was sustained and formal judgment dismissing the suit as of non-suit was signed. Plaintiff appealed from this judgment.
The contention of the appellant in this court is directed almost entirely against the court's ruling on the exception. He argues the merits of that exception at length, citing and quoting from authorities relevant to the question of undisclosed agency. He also argues that regardless of who else might be responsible to him on commissions account, he has the right to sue the defendant for the full amount of same and if he is not responsible therefor, he, the defendant, has the right to so plead and defend; that he, appellant, has the right to sue whom he desires and should not be forced to implead anyone he does not wish to sue in order to have his rights against defendant adjudicated. Of course, all of his argument bears upon the merits of the exception.
Appellee argues, firstly, that the ruling on the exception is not before the court because, if for no other reason, no judgment was signed pursuant to the ruling; and, secondly, that the judgment from which he appealed dismissed the suit because appellant refused to comply with the court's order; that it was optional with the appellant as to whether he would comply with the order of the court or have his suit dismissed.
The exception of non-joinder is a dilatory one. It has to do with procedure. Its function is not to work dismissal of a pending suit, but simply to retard its progress. Code of Practice, Article 332. The judgment that sustained the exception of non-joinder is interlocutory in character from which there is no appeal as it does not decide on the merits nor does it work irreparable injury. Code of Practice, Articles 538 and 566. Mann v. Edenborn, 185 La. 154, 168 So. 759.
Neither the merits of the exception nor the correctness of the...
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Andry v. Maryland Casualty Company
...denied 354 U.S. 939, 77 S.Ct. 1397, 1 L.Ed.2d 1536. In addition to the Louisiana authorities relied upon therein, see Neal v. Hall, La.App., 28 So.2d 131 (2 Cir. 1946) and Anthon v. Knox, La.App., 155 So.2d 53, 56 (1 Cir. 1963). The significance of this legal principle to the issue under co......
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People of Living God v. Chantilly Corp., 48762
...al., 230 La. 221, 88 So.2d 33. In support of its holding the Court of Appeal herein relied principally on the case of Neal v. Hall, La.App., 28 So.2d 131 (Second Circuit). But a careful reading of the opinion therein shows that the court in this cause misinterpreted it. In the Neal case the......
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Washington v. Flenniken Const. Co., 1750
...751; Bogan v. Byrom, La.App. 3 Cir., 151 So.2d 718; La Fleur v. Dupuis, La.App. 3 Cir., 147 So.2d 724. All deriving from Neal v. Hall, La.App. 2 Cir., 28 So.2d 131, there is, as Flenniken points out, a line of cases which hold that, on an appeal from a dismissal because of noncompliance wit......
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LeBlanc v. Travelers Indem. Co.
...Cir. 1957); Pounds v. Yancey, 224 So.2d 1 (La.App.1st Cir. 1969); cert. den. 254 La. 810, 227 So.2d 145 (1969); Neal v. Hall, 28 So.2d 131 (La.App.2nd Cir. 1946). In McCook v. Comegys, supra, this Court 'A judgment of nonsuit, whether with or without reservation of the right to again sue up......