Smith v. Cook
| Decision Date | 07 March 1938 |
| Docket Number | 34573 |
| Citation | 189 La. 632,180 So. 469 |
| Court | Louisiana Supreme Court |
| Parties | SMITH et al. v. COOK |
Second Rehearing Refused April 4, 1938
Original Opinion of November 29, 1938, Reported at 189 La. 632, 180 So. 469.
On Motion to Remand.
This suit involves title to real estate and is now before us for reconsideration of our original decree wherein we denied the motion of defendant (appellee) to remand the case in order that he might avail himself of the provisions of article 2652 of the Revised Civil Code.
The article provides that "he against whom a litigious right has been transferred, may get himself released by paying to the transferee the real price of the transfer, together with the interest from its date." Article 2652. "A right is said to be litigious, whenever there exists a suit and contestation on the same." Article 2653.
In the instant case, it is shown that while the matter was on appeal, one of the plaintiffs transferred all of his rights titles, and interests in and to the property in controversy and several other plaintiffs transferred mineral interests or servitudes in the same, whereupon the defendant moved to have the case remanded to the lower court in order to have the several transferees or their assigns made parties to this suit, and that upon his paying to each transferee the price of the respective transfers, with interest from date, that he be decreed to be the owner of the several interests so transferred.
Plaintiffs (appellants) contend, first, that under the rules of the Supreme Court, section 4 of rule XII, defendant was without right to have a rehearing granted in this case; and, second, the action of defendant instead of ending litigation -- the object of article 2652 -- would prolong the same, thereby defeating the very purpose of the law, and we should therefore reinstate our original decree.
The contention of the plaintiffs is that defendant was without right to apply for a rehearing and to have this court review its opinion and decree and to grant a rehearing because of the provisions of section 4 of rule XII of the Supreme Court, which provides that "an application for rehearing will not be considered when * * the judgment of this court has not finally disposed of the case." Defendant's right to avail himself of the provisions of the article of the Civil Code must be exercised before the termination of the litigation. After judgment, it is too late. Marshall v. McCrea, 2 La.Ann. 79, 80; Saint v. Martel, 122 La. 93, 47 So. 413; McMicken v. Perin, 59 U.S. 507, 18 HOW 507, 510, 15 L.Ed. 504; Cucullu v. Hernandez, 103 U.S. 105, 26 L.Ed. 322. Therefore, our original decree was one which would finally dispose of the defendant's right. Hence, our above referred to rule is inapplicable.
The main question for our consideration is whether or not the defendant, against whom only a portion of the thing in litigation has been transferred -- one of the several litigants having sold all of his interest in the matter and several having sold certain mineral interests or servitudes therein -- may avail himself of the provisions of the Civil Code, art. 2652.
Plaintiffs do not question the right of a party against whom a litigious right has been transferred to avail himself of the provisions of the article pendente lite, either in the lower court or on appeal, provided it will end the litigation. It is their contention that if the defendant's motion is granted, instead of ending the litigation, the contestation will be prolonged because the defendant will thereby acquire title to a portion of the property only -- title to the remainder thereof would still be in contest until a final decision of this court. In support of their contention, plaintiffs rely on the case of Leftwich et al. v. Brown, 4 La.Ann. 104.
We have carefully reviewed the entire jurisprudence under article 2652, including the case of Leftwich et al. v. Brown, supra, and we fail to find that such a construction has been placed on the article.
In the Brown Case the plaintiffs instituted proceedings against the defendant for an accounting of his tutorship of his former ward, whose rights, while in litigation, they acquired for $ 550. The defendant resisted the claim and set up as his main defense certain advances made to his former ward prior to the assignment of the claim to the plaintiffs. He also invoked the provisions of article 2652 of the Revised Civil Code, but he insisted on his right to have the benefit of this plea in the final judgment to be rendered on all defenses. The court held that he could not continue to contest the suit, raise difficulties as to the right of the plaintiff to recover his debt, and protract the litigation, for the reason that "to permit him to do it, would be to defeat the very object of the law," citing
In the opinion it is stated that the articles of our Code concerning litigious rights are founded on the laws "perdiversas and ab Anastasio, C. Mandati." These latin words are an old style reference to the Codex, which is one of the divisions of Justinian's Corpus Juris Civilis, under the title "Of Mandate," and refer to an ordinance established by the Emperor Anastasius, which was later renewed by Justinian. See Codex Book 4, Title 35, Laws 22 and 23; S. P. Scott's translation of Justinian's Corpus Juris; and Pothier on Contract de Vente, § 590, p. 338.
Dr. Ferdinand Mackeldey, in his Handbook of the Roman Law, Second Book, Chapter 2, Title "Of the Cession of Claims," under "Lex Anastasiana," gives the substance of these laws as follows:
Under the title "Droits Litigeux" (Litigious Rights), in Merlin's...
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