Succession of Marinoni

• Decision Date: 04 November 1935
• Docket Number: 33013
• Citation: 183 La. 776,164 So. 797
• Court: Louisiana Supreme Court
• Parties: Succession of MARINONI

164 So. 797

183 La. 776

Succession of MARINONI

No. 33013

Supreme Court of Louisiana

November 4, 1935

Original Opinion of May 27, 1935. Reported at 183 La. 776 164 So. 797. [Copyrighted Material Omitted]

LAND Justice. O'NIELL, C. J., ROGERS, J., ODOM, J., dissents.

OPINION On Rehearing.

LAND, Justice.

On the original hearing, the plea of res adjudicata was sustained in this case for the reason that: "The parties to the former suit and the object of the demand were the same as in this suit and the cause of action is substantially the same. The only difference in the allegations made in the two suits is that in the former plaintiff alleged that she was the issue of a 'common law marriage' contracted in the State of Mississippi and in this suit she alleges that she is the issue of a 'putative marriage.'"

Plaintiff alleged in the first suit, Succession of Ulisse Marinoni, Jr., 177 La. 592, 148 So. 888: "That according to the laws of the State of Mississippi a valid, legal marriage can be contracted by the mere consent of the parties, coupled with the fact that the parties assume theburdens of matrimony and hold themselves out to the world as man and wife, and live together as such with the intent to be man and wife, which your petitioner avers her father, Ulysses Marinoni, Jr., and her mother, Josephine Bartoletti, did as aforesaid.

"Petitioner avers that the sole and only issue of said marriage relationship is your petitioner, Rita Marinoni, who was born in the City of New Orleans on the 13th day of January, 1902, and is therefore a forced heir of your decedent. Petitioner avers that she is the only lawful child of petitioner and that petitioner never had any other children.

"That your petitioner alleges that her father, Ulysses Marinoni, Jr., died in the City of New Orleans on the 12th day of September 1931, leaving a will in the olographic form by which he makes various and sundry legacies, recognizes Adina Provosty as his surviving wife, although your petitioner's mother was deceased's legal wife, and living, ignoring petitioner's legal rights as his sole heir, being the legitimate child of his marriage with her said mother. That said statement contained in said will to the effect that deceased never had any children are (is) in error and untrue." Articles V, VI, and VII of petition. (Italics ours.)

Plaintiff prayed that: "Adina Provosty Marinoni, individually, as she is declared to be in the Succession proceedings of Ulysses Marinoni No. 193-524 of the docket of this Honorable Court, and W. T. Nolan and the Canal Bank & Trust Company, executors, be duly cited to appear and answer this petition, and, after due proceedings had, that there be judgment in favor of your petitioner and against the said aforesaid, Adina Provosty, individually, and W. T. Nolan and Canal Bank & Trust Company Testamentary Executors, declaring said last will and testament of decedent herein to be void and of no effect insofar as it purports to recognize Adina Provosty as decedent's wife and widow in community, and insofar as it fails to recognize your petitioner as sole and only legal heir at law of decedent, and impinges your petitioner's legitime, and for further judgment decreeing your petitioner as sole and only legitimate heir at law of decedent, and as such is entitled to one-third of decedent's estate, or such larger amount as deceased has not disposed of by particular legacy." (Italics ours.)

The prayer of plaintiff, in this, the second suit, is that: "The Executors of the within estate, William T. Nolan, the Canal Bank and Trust Co., and Mrs. William T. Nolan, Universal Legatee of said within estate be duly cited to appear and answer this petition, and that after all due and legal proceedings had, the provisions of the last will of deceased, disposing of petitioner's legitime, be annulled and that petitioner be declared entitled to inherit one-third of her father's estate, as the issue of a putative marriage contracted by her mother in good faith and in the full belief that she was legally married to Ulisse Marinoni, Jr., at the time of petitioner's conception, and be sent into possession of same and for general relief." (Italics ours.)

It is to be observed that the prayer of plaintiff, in the first suit, is for judgment "against Adina Provosty individually" and against the executors, declaring the last will and testament of decedent void and of no effect, in so far as it purports "to recognize Adina Provosty as decedent's wife and widow in community, and insofar as it fails to recognize plaintiff as sole and only legal heir at law of decedent." (Italics ours.)

Mrs. Adina Provosty is not a party, either individually or as decedent's wife, to the present suit, in which plaintiff prays to have the will annulled, only to the extent of declaring her entitled to inherit one-third of decedent's estate, "as the issue of a putative marriage."

Mrs. William T. Nolan, universal legatee under decedent's will, is a party to the present suit, but is not a party to the first suit.

It is plain, therefore, that the parties to the first and to the present suit are not the same in quality.

The thing demanded is not the same in the second suit as in the first, as is clearly shown by the prayer for judgment in each suit.

As declared in article 2286 of the Civil Code: "The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality." (Italics ours.)

Nor, in our opinion, is the thing demanded founded upon the same cause of action.

It requires no great argument to prove that one claiming rights under a putative marriage is invoking a different cause of action than one who claims rights under a legal marriage. The difference was expressly recognized in McCaffrey v. Benson, 40 La.Ann. 10, 13, 3 So. 393.

In the year 1886, Mrs. McCaffrey married the defendant, Benson. At the time, her husband had left her and had disappeared, and, after several years, was reported dead, but reappeared after her marriage to Benson.

Plaintiff sued Benson for a separation from bed and board and for one-half of the property belonging to the community existing between her alleged husband and herself. Defendant first pleaded the general denial, and subsequently urged by way of peremptory exception that there was no legal marriage between him and plaintiff, for the reason that when he agreed to marry her, she was, by previous legal marriage, the wife of another man then living, and from whom she had never been legally separated. He prayed for judgment recognizing the nullity of his marriage with plaintiff. Judgment was rendered overruling his exception, and granting to plaintiff all the relief she prayed for.

On appeal to the Supreme Court, the marriage was decreed null and the exception maintained. McCaffrey v. Benson, 38 La.Ann. 198.

In the year 1888, Mrs. McCaffrey brought a second suit against Benson, alleging that the marriage between defendant and herself was contracted in good faith, and that one of the civil effects which it produced was a community of acquets and gains of which she became joint owner with defendant, in equal portions, of all the property acquired by him during the term of their cohabitation.

The defendant, Benson, pleaded res adjudicata to plaintiff's demand, predicated upon the judgment obtained by him decreeing the marriage a nullity. The plea was overruled and judgment rendered for plaintiff.

On appeal, this court said in McCaffrey v. Benson, 40 La.Ann. 10, 13, 3 So. 393, 394: "As in that case [McCaffrey v. Benson, 38 La.Ann. 198] plaintiff's demand was for a separation from bed and board, and for one-half of the property belonging to the community existing between her alleged husband and herself, and as her entire demand was rejected by our judgment, defendant argues that the said judgment is a complete bar to plaintiff's present action, which sets up the same demand, for the same cause of action, between the same parties, in the same capacity. Two of the essential requisites to the plea are to be found in the case; but the third is wanting, hence the exception is not good.

"In the previous suit the claim for the community was grounded on an alleged lawful marriage, and in the present action the community rights sought to be enforced spring, as alleged civil effects, from a marriage which has been declared null, but which had been contracted in good faith. It is therefore clear that the cause of action is not identical in the two suits, and that the district judge did not err in overruling the plea." (Italics ours.)

Likewise, the claims of plaintiff, Rita Marinoni, in the first suit were based upon an alleged valid, legal, common law marriage of her mother in the State of Mississippi. And in the present suit, they spring "as alleged civil effects" from a marriage alleged to have been contracted in good faith, a "putative marriage." C.C., arts. 117, 118.

The cause of action is not the same in the two suits.

The first suit is based solely and exclusively upon an alleged "valid, legal common law marriage" of plaintiff's mother in the state of Mississippi. There is not a single allegation in the petition in that case as to a marriage contracted in good faith, or a "putative marriage."

It is stated in the original opinion in the present case, however that: "The rule is that where one claims a certain thing or seeks recognition of certain rights, he must assert all his pretensions, all his titles, in one suit. A plea of res adjudicata based on a former judgment between...