Ruhlman v. Fremin
| Decision Date | 13 November 1961 |
| Docket Number | No. 5378,5378 |
| Citation | 135 So.2d 113 |
| Parties | Albert J. RUHLMAN et al. v. Lester FREMIN and Fred B. James. |
| Court | Court of Appeal of Louisiana — District of US |
Archie D. Saint, Thibodaux, for appellant.
Elton A. Darsey, Houma, for appellees.
Before LOTTINGER, LANDRY and REID, JJ.
This is a suit on open account brought by Albert J. Ruhlman and Imelda Bourgeois Ruhlman for restaurant equipment alleged to have been sold by the plaintiff to the defendants for the sum of $4,228.38. The petition alleges that the defendants were commercial partners and that the equipment was purchased by them to equip a floating night club called The Floating Palace which was owned equally by the defendants and operated as a commercial partnership.
The defendant, Lester Fremin filed his answer stating that the entire indebtedness was the obligation of the defendant, Fred James, denying that he purchased the equipment but admitted that a commercial partnership did exist between him and Fred James, but same had been dissolved and Fred James had assumed all obligations of the former partnership. See Article IV of the original answer.
On June 23, 1960 the case was fixed for trial on November 17, 1960. On November 14, 1960 the defendant, Lester Fremin, through his attorney moved to file an amended answer, changing Paragraphs 4, 7, and 8 of the original answer filed herein on June 20, 1960 and inserted an extra paragraph known as Article XIX in the following respect, to-wit:
1. By changing paragraph IV hereof to read as follows: defendant admits that he had interests in The Floating Palace at the time but only in so far as the defendant had aided in the financing of said floating night club; and only in that capacity were his interests involved and never at anytime was there a commercial partnership existing between the said defendant and Fred James.
2. By changing paragraph VII thereof to read as follows: Further answering defendant, Lester Fremin avers that by deed dated September 24, 1959 he conveyed to defendant, Fred James, all of his interest in the said Floating Palace; and that part of the consideration for said transfer was the assumption by Fred James of all of the liabilities incurred by the said parties.
3. By changing paragraph VIII thereof to read as follows: defendant further alleges in the alternative that if this Court should rule that there existed a partnership; and said partnership being obligated for said debts; then, and in that event the said partnership would be an ordinary partnership and defendant, Lester Fremin, is only liable for an undivided one-half thereof.
4. By adding an additional paragraph to be numbered paragraph XIX as follows: The prior answer filed herein was based on misrepresentation of parties other than defendant and that the undersigned counsel inadvertently admitted partnership when in truth and in fact there was no partnership as a trial on the merits will disclose to this Honorable Court.
The Counsel of the plaintiff being present in Court objected to the filing of said amended answer on the grounds that the same would change the issues. The Court directed the amended answer be filed subject to the objection by Counsel for the plaintiff.
On November 17, 1960 the date fixed for the trial of the case, Counsel for the plaintiff moved to strike the amended answer filed by the defendant, Lester Fremin, on November 14, 1960 on the grounds that the same changed the issues and the Court ruled that the matter would be taken up and tried first on the petition, the original answer of the defendants and then the matter would be heard on the issues raised by the amended answer, subject to the objection of the Counsel for plaintiff.
The case was tried on the merits as to the defendant, Lester Fremin and the Default as to Fred James. On the same date the Court rendered Judgment in favor of the plaintiff and against the defendant Lester Fremin and Fred James in solido, and from this Judgment the defendant, Lester Fremin, has appealed.
The first question to be considered is the question as to whether or not the defendant was entitled to file the supplemental and amended answer. All through the taking of the testimony Counsel for plaintiff urged his objection to the testimony of the facts set out in the amended answer and the Court heard the testimony subject to the objection. The Court feels that the District Judge should have refused to authorize the filing of the amended answer because it would change an issue of fact, namely, whether or not it was a commercial partnership between the defendants, Lester Fremin and Fred James. In Code of Practice, Articles 419, 420 a defendant could not amend his answer if it altered the substance of his original answer.
See also: Jordan vs. Checker Cab Company, Inc., 10 La.App. 132, 120 So. 426; Edwards vs. Monohan, 10 La.App. 41, 120 So. 881; State of Louisiana vs. Bozeman, 156 La. 635, 101 So. 4.
Counsel for defendant contends that he...
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Ackenhausen, In re
...So.2d 204; Andrews v. Carber, La.App., 128 So.2d 460; Hernandez v. State Farm Mutual Auto Ins. Co., La.App., 128 So.2d 833; Ruhlman v. Fremin, La.App., 135 So.2d 113. We are of the opinion that the appellee has complied with all the requirements enunciated by the pertinent adoption statutes......