Payton v. Ideal Savings & Homestead Ass'n
| Decision Date | 15 April 1935 |
| Docket Number | 14826 |
| Citation | 160 So. 648 |
| Parties | PAYTON v. IDEAL SAVINGS & HOMESTEAD ASS'N |
| Court | Court of Appeal of Louisiana — District of US |
Edw S. Spiro, of New Orleans, for appellant.
Pierre D. Olivier, of New Orleans, for appellee.
This is a suit for damages. It is brought on behalf of an unemancipated minor. The original petition was filed by the mother of the injured minor, and it contains no allegation with reference to her qualification to represent the minor except an averment that she, the mother, is the widow of William Payton, the father. To this petition defendant excepted, challenging the right of the mother, unless further qualified, to represent the minor in litigation.
Subsequent to the filing of the exception, the mother, in a separate proceeding in the civil district court, sought and obtained an order appointing and confirming her as natural tutrix of the said minor. This action was taken upon her petition in which she alleged, not that her husband, the father of the said minor, had died, but that the said husband had abandoned her more than eleven years prior to the filing of the proceeding and that she had no knowledge since that time of his location.
After obtaining the judgment recognizing her as natural tutrix, the mother, in this proceeding, filed a supplemental petition, in which she recited that she had qualified as natural tutrix and declared that she had appeared in that capacity and sought recovery for the use and benefit of the minor.
Defendant does not challenge the right of the mother to qualify as natural tutrix under the circumstances, but protests that her action in qualifying came too late, that, when the exception to her capacity was filed, her status was fixed so far as this litigation is concerned, and that she should not have been allowed to amend or supplement her original petition after the filing of the exception. This contention results from defendant's interpretation of the decision of the Supreme Court in West Orleans Beach Corporation v Martinez, 180 La. 31, 156 So. 165, 166, in which it was said that: "(3)5C A petition which does not allege a cause of action is, legally speaking, no petition, and hence it cannot be amended."
When the Supreme Court used this language, it repeated almost verbatim what had been said when the original opinion was rendered in the matter of Tremont Lumber Co. v. May et al., 143 La. 389, 78 So. 650, 652, for in that opinion appears the following: "(3)5C A petition upon which no judgment can be pronounced does not show a cause of action; and a petition which does not show a cause of action is, legally speaking, no petition, and hence cannot be amended."
In that case a rehearing was granted, and, when the matter was heard on rehearing, the court did not decide that the amendment should not have been permitted, but remanded the matter for trial on the merits.
It had always been our belief that for some time the jurisprudence of this state had established the doctrine that, where an exception of no cause of action is based upon mere insufficiency of material allegation, the petitioner should be granted an opportunity to amend and to supply the deficiencies. In an article entitled "The Exception of No. Cause of Action in Louisiana," page 17, volume IX of Tulane Law Review, it is stated, on page 48, that our Supreme Court "for a period of a half-century freely permitted the plaintiff to amend his petition so as to disclose a cause of action which was not expressed in his original petition even after the exception had been sustained." A reading of the same article shows that for a period of some forty-two years, from 1880 until 1922, this doctrine was not followed, and that, during that time, the rule seemed to be in Louisiana that, where a document purporting to be a petition fails to disclose a cause of action, it is no petition and cannot be amended. It further appears that, from 1922 until the appearance of the decision in the case of West Orleans Beach Corporation v. Martinez, supra, the liberal rule was followed almost without exception, and amendments were permitted "which work no injury and prevent useless delays and costs" citing Le Blanc v. United Irrigation & Rice Milling Co. (1911) 129 La. 196, 55 So. 761; Davis v. Arkansas So. Ry. Co. (1906) 117 La. 320, 41...
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