Smith v. Stephens
| Citation | 401 So.2d 674 |
| Decision Date | 30 June 1981 |
| Docket Number | No. 8330,8330 |
| Parties | Mrs. Jerry SMITH, Born Cheryl Edlyn Stephens, Plaintiff-Appellant, v. Roy B. STEPHENS, Dow L. Stephens and Jeanette Stephens Proctor, Defendants-Appellees. |
| Court | Court of Appeal of Louisiana (US) |
Woodley, Barnett, Cox, Williams & Fenet, Robert W. Fenet, Lake Charles, for plaintiff-appellant.
Gold, Little, Simon, Weems & Bruser, Robert G. Nida, Alexandria, Simms, Tillman & Fontenot, Elvin C. Fontenot, Cabra, Leach & Tilley, Edwin L. Cabra, Thomas A. Self, Leesville, for defendants-appellees.
Before CULPEPPER, FORET and LABORDE, JJ.
Plaintiff, Mrs. Jerry Smith, born Cheryl Edlyn Stephens, instituted this suit against the legitimate heirs of James Edward Stephens and other defendants including Roy O. Martin Lumber Company seeking recognition as a surviving child and irregular heir of James Edward Stephens. As an illegitimate child and irregular heir, plaintiff claims she is entitled to an interest in the Stephens estate or alternatively, to one-fourth the value of the Stephens estate.
Roy O. Martin Lumber Company, the purchaser of a portion of the Stephens estate property, filed a dilatory exception of prematurity based upon plaintiff's failure to first obtain a judgment recognizing her as an irregular heir and placing her in possession of the Stephens succession. The trial court sustained the exception of prematurity and dismissed without prejudice plaintiff's suit against Roy O. Martin Lumber Company. Plaintiff appeals.
The defendant-appellee, Roy O. Martin Lumber Company, moves to dismiss the appeal of the plaintiff-appellant, Mrs. Jerry Smith, contending the trial court ruling is a non-appealable interlocutory judgment. We deny the motion to dismiss the appeal.
The plaintiff claims to be the daughter of Louise Callie Stephens and James Edward Stephens. 1 At the time of her birth, James Edward Stephens was married to Jeanette D. Stephens. From this marriage three children were born: Roy B. Stephens, Dow L. Stephens and Jeanette Stephens Proctor. James Edward Stephens died in 1959. On August 10, 1959, the judgment of possession rendered in his succession recognized Roy B. Stephens, Dow L. Stephens and Jeanette Stephens Proctor as his surviving children and sole heirs. In 1971, Roy O. Martin Lumber Company purchased property formerly belonging to the estate of James Edward Stephens.
Plaintiff instituted this suit against Roy O. Martin Lumber Company and several other defendants seeking recognition as a surviving child and heir of James Edward Stephens entitled to an undivided one-fourth interest in all the property owned by James Edward Stephens at his death. Alternatively, plaintiff seeks a money judgment for one-fourth the value of James Edward Stephens estate. The plaintiff's claim is founded upon her being the illegitimate child and irregular heir of James Edward Stephens.
The Roy O. Martin Lumber Company filed a dilatory exception of prematurity based upon plaintiff's failure to first obtain a judgment recognizing her as an irregular heir and putting her into possession of the Succession of James Edward Stephens. The trial court sustained the dilatory exception of prematurity and dismissed plaintiff's suit without prejudice.
The dismissal of a suit as the result of sustaining a dilatory exception of prematurity is a dismissal without prejudice. 2 A dismissal without prejudice is a final judgment from which an appeal will lie. Pasquier, Batson & Co. v. Ewing, 367 So.2d 28 (La.App. 2nd Cir. 1978), writ den., 368 So.2d 136 (La.1979); Butler v. Flint-Goodridge Hosp. of Dillard U., 346 So.2d 1131 (La.App. 4th Cir. 1977); Rapides Savings & L. Ass'n v. Lakeview Develop. Corp., 326 So.2d 511 (La.App. 3rd Cir. 1976); Lee v. Carruth, 217 So.2d 718 (La.App. 3rd Cir. 1969), writ ref'd, 254 La. 470, 223 So.2d 873 (1969); People of Living God v. Chantilly Corporation, 251 La. 943, 207 So.2d 752 (1968); Washington v. Flenniken Construction Company, 188 So.2d 486 (La.App. 3rd Cir. 1966).
The motion to dismiss the appeal is denied.
We take the liberty of quoting the trial judge's scholarly analysis of the issue before the court.
The original petition filed by the plaintiff herein on August 2, 1977, named as defendants in this action Roy B. Stephens, Dow L. Stephens and Jeanette Stephens Proctor.
The plaintiff in this action was born July 16, 1952, purportedly the issue of an adulterous union between James Edward Stephens (also known as J. Ed Stephens), age 57, and Louise Callie Stephens, age 28 years. Although their surnames appear the same, James Edward Stephens and Louise Callie Stephens were unrelated.
For many years prior to the year 1952 James Edward Stephens had been married to Jeanette Dow Stephens which marriage was dissolved by decree of divorce rendered on the 7th day of February 1957 in an action bearing number 14,179 on the docket of the Thirtieth Judicial District Court, Vernon Parish, Louisiana.
It is undisputed that the defendants named in the original petition were children born issue of the marriage of Jeanette Dow Stephens and James Edward Stephens. The three children named as defendants herein were recognized as the sole and only heirs of J. Ed Stephens (James Edward Stephens) who died intestate on December 10, 1957 and were placed in possession, in the proportions of an undivided one-third interest to each, of the property, both movable and immovable, which was owned by him at the time of his death by a judgment dated August 10, 1959 rendered in proceedings styled "Succession of J. Ed Stephens" number 2543 on the docket of the Thirtieth Judicial District Court, Vernon Parish, Louisiana.
In her petition the plaintiff seeks to be recognized as an heir and to be recognized as entitled to the ownership and possession of an undivided one-fourth interest in and to all of the property owned by J. Ed Stephens at the time of his death, or alternatively, for judgment against the defendants for an amount equal to one-fourth of the value of the decedent's estate together with interest, etc.
A first supplemental and amending petition filed on November 2, 1979 alleges that portions of the property of the estate of Mr. Stephens has been transferred to other persons or entities and makes these last transferees, including Roy O. Martin Lumber Company, a defendant in these proceedings.
On May 16, 1980 Roy O. Martin Lumber Company filed a dilatory exception of prematurity contending that (a) the plaintiff is at best an irregular heir of the decedent, and (b) an action to be declared owner of an undivided interest in immovable property owned of record by exceptor is premature until the plaintiff has first been recognized as an heir and placed in possession of succession property. This exception is before the Court.
R.C.C. Article 919, as it existed prior to the year 1980, effected a total statutory disinheritance of acknowledged illegitimate children whose natural fathers were survived by either legitimate descendants, ascendants, collaterals, or surviving spouse. Only the state was excluded from inheritance by virtue of the existence of an acknowledged illegitimate child. Article 919 was declared unconstitutional in Succession of Sidney Brown, Jr., Ct. App. 2nd Cir. (1980) 379 So.2d 1172; Rehearing denied February 29, 1980. The Louisiana Supreme Court granted writs to consider the question of constitutionality. The decision of the Second Circuit Court of Appeals striking down Article 919 was affirmed. See Succession of Sidney Brown, Jr., Sup.Ct. (1980) 388 So.2d 1151; Rehearing denied October 24, 1980.
Although it appears from the argument of counsel, the briefs filed herein and the records of other judicial proceedings to which reference has been made that the plaintiff was conceived of an illicit union between her mother, Louise Callie Stephens, and James Edward Stephens, the plaintiff's pleadings (original petition and first and second supplemental and amending petition) do not allege any acknowledgment of paternity by James Edward Stephens. Only by reading between the lines can the illegitimacy of the plaintiff be discerned.
It is, however, apparent that that plaintiff did not fall within the category of "legitimate" child at the time of her birth. The purported father was married to a woman other than plaintiff's mother at the time of both conception and birth. There are no allegations concerning a prior marriage of plaintiff's mother nor is there any evidence before the Court to establish whether she had been married or whether, when and how that marriage was dissolved.
Chapters 1 and 2 of Title VII of the Louisiana Civil Code (Articles 178-212 inclusive) were amended by Act 607 of 1979. Nevertheless, under the provisions of R.C.C. 180, plaintiff's rights began as those to which an illegitimate child may have. This is not to say, though, that plaintiff may not be able to establish some rights in this matter.
There has been no contention and no showing that plaintiff was born of an incestuous union, and, consequently, it is possible that she may have acquired almost the full panoply of rights to which a legitimate child would be entitled. Both before and after its amendment R.C.C. Article 198 provides that a child born out of marriage may be legitimated by the subsequent marriage of his or her father and mother, if formally or informally acknowledged, either before or after the marriage. If acknowledged and if the mother and father were subsequently married, an illegitimate child has the same rights as a child born issue of the marriage. See R.C.C. Article 199.
As previously pointed out, these proceedings do not allege any acts of acknowledgment. It is not alleged that there exists any notarial act executed by James Edward Stephens pursuant to the provisions of R.C.C. Article 200 or R.C.C. Article 203 for the purpose of either legitimation or acknowledgment. The execution of such an...
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Succession of Bissic
......1st Cir.1980), writ denied 396 So.2d 1324 (La.1981) and Smith v. Stephens, 412 So.2d 570 (La.1982), reversing 401 So.2d 674 (La.App. 3d Cir.1981), in which similar actions by alleged acknowledged illegitimate ......
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