Schoultz v. Keller

LECHE, J.

Plaintiffs pray to be declared owners of a tract of land situated in the parish of St. Tammany. They allege and set forth their title, and further say that they are informed that defendant asserts his ownership thereof and that neither they nor defendant, Keller, are in possession. The action is brought under Act 38, p. 38, of 1908.

Defendant claims that he and his co-owners are in possession and that fact seems to be supported by the evidence in the record, but defendant does not say who are his co-owners. The action then must be viewed as an ordinary petitory action, subject to the rules prescribed in the Code of Practice, Arts. 43 et seq.

We have then before us a petitory action brought against only one of several persons who are in possession of and claim ownership of the property in dispute. If plaintiffs should be successful in proving their demand, it would then be impossible to decree how much or what proportion of the property they could recover as against the present defendant, and it would be impossible to decree them owners of the whole property as against claimants and possessors who are not parties to the action. In answer to this, the plaintiffs argue that they would be satisfied with a judgment solely against defendant, although void as to the other possessors or claimants to the property, who are not present or represented in this suit. Courts of justice will not knowingly render judgments that are void and of no effect and they will, ex proprio motu, notice the want of proper parties.

Art. 43 of the Code of Practice provides that the petitory action must be brought against the person who is in actual possession,’ and if brought against a farmer or lessee, the latter must - declare the name *576and residence of his. lessor. It sometimes happens, however, that the farmer or lessee will not declare the name and residence 'of his lessor, and that presents a situation for which the 'Code makes no provision. •The status of the present case may be assimilated to that of a lessee who does not declare the name and residence of his lessor. The Supreme Court in the case of Byrne vs. Hebert, 51 La. Ann. 548, 25 So. 586, was presented with such a situation. The court, although divided on the original hearing, unanimously held on rehearing that the judgment of the District Court should be avoided and the case remanded, With leave to the plaintiff to make proper "parties. See also, on1 the same subject, the cases of Cutno vs. Weil Bros., 127 La. 701, 53 So. 962; De Soto’s Heirs vs. Standard Oil Company, 139 La. 965, 72 So. 695.

• Under these circumstances, the judgment should be avoided and the present case should be remanded in order that the plaintiffs may make all the persons who claim possession and ownership of the property, parties defendant- to their demand in the present suit, and it is so ordered, defendant to pay costs of appeal, and all other costs to await final determination of the suit.