Schoultz v. Keller

• Decision Date: 13 February 1929
• Docket Number: 404
• Court: Court of Appeal of Louisiana — District of US
• Parties: SCHOULTZ ET AL. v. KELLER

120 So. 232

10 La.App. 138

SCHOULTZ ET AL. v. KELLER

No. 404

Court of Appeals of Louisiana, First Circuit

February 13, 1929

Appeal from the Parish of St. Tammany. Hon. Prentiss B. Carter Judge.

Action by Mary Smallwood Schoultz et al. against Henry Keller.

There was judgment for defendant and plaintiff appealed.

Judgment reversed and case remanded.

Hiddleston Kenner, of New Orleans, attorney for plaintiff, appellant.

Victor A. Planche, of Covington, attorney for defendant, appellee.

OPINION

LECHE J.

Plaintiffs allege that they are the sole surviving heirs of Paul Smallwood and, as such, they sue to be recognized as owners of the South half of the Southeast quarter of Section 8 in Township 9, South of Range 13 East, containing eighty acres.

They allege in their original petition that defendant is also claiming title to the same land; that neither are they, nor is defendant in possession, and they base their action on Act 38, page 38 of 1908. Defendant Keller, who alone was originally sued, interposed several defenses. On the trial of the case, it was shown by plaintiffs' own witnesses that Keller was actually in possession and that he, and also other parties are claiming ownership of the property in dispute. On appeal to this Court, the action in the opinion of the Court was held to be of petitory character and the case was remanded to enable plaintiffs to make proper parties and to have them duly cited.

After the case was remanded to the District Court, plaintiffs filed a supplemental and amended petition, in which they prayed for citation on Auguste J. Planche, Sr., and the heirs of his deceased wife, as being the other persons who claimed ownership of the property, and the decree of this Court was thereby apparently complied with.

All the defendants then excepted to plaintiffs' original and supplemental petitions on the ground that the causes of action therein set forth are inconsistent and that plaintiffs should be ordered to elect, whether they will proceed under Act 38, page 38 of 1908, or according to Articles 43 et seq. of the Code of Practice, fixing the manner in which petitory actions should be conducted.

Plaintiffs having failed to make such election, the trial judge after due hearing, dismissed the suit and from that judgment plaintiffs prosecute the present appeal.

The character of an action at law, is to be determined by the prayer of the petition. Lagay vs. Chieusse, 5 Rob. 132; Edwards vs. Ballard, 20 La.Ann. 169; Ashbey vs. Ashbey, 41 La.Ann. 102, 5 So. 539; Maille vs. Ill. Cent. Rd. Co., 121 La. 360, 46 So. 355. From this principle which is now firmly imbedded in our law, it is obvious that the character of an action is not to be determined by what the parties choose to call it, for their opinion is merely a conclusion of law, but it must be determined from the pleadings themselves.

When this case was first submitted to us, plaintiffs alleged that neither were they, nor was defendant Keller in possession of the property and that allegation, read in connection with the prayer of their petition, fixed the...