Industrial Lumber Co. v. Rogers

OVERTON, J. Before stating the issue to be determined, it may be well to say that the suit first named in the title is not before us, but is now before the Court of Appeal for the first circuit; and hence, no further reference will be made to that case. It is otherwise, however, as to the case last named in the title. That ease is on appeal to this court. In it, the Industrial Lumber Company alleges that it is the owner of a certain tract of land, lying in the parish of Vernon; that L. Z. Rogers and E. R. Legg are trespassing on the property, and are attempting to remove timber from it; *559 that it has protested against the acts of Rogers and Legg, but notwithstanding these protests, both threaten to continue the trespass and to remove the timber. The Industrial Lumber Company, therefore, prays that an injunction issue prohibiting Rogers and Legg from continuing to trespass on the property; from removing or attempting to remove the timber from the land; and from doing any act which would interfere with the enjoyment of plaintiff’s possession; and prays that the injunction, after due trial, be perpetuated. The defendants, E. R. Legg, one of the heirs of John Legg, deceased, and L. Z. Rogers, filed an answer to the suit. In their answer, they were joined by the remaining heirs of John Legg, deceased, who made themselves, of their own motion, defendants in the suit, instead of formally intervening therein. These heirs, together with Rogers and Legg, deny that plaintiff is the. owner of the property, and aver, among other matters of defense, that those of the defendants who are the heirs of John Legg are the owners of the property; that John Legg acquired the land in 1901; that in 1902, Legg entered into a contract with the Wright-Blodgett Lumber Company, through whom plaintiff claims title, to sell that company the timber on the land; that it was not Legg’s intention to sell the land itself; that this contract, which purports to be a sale, was never accepted by the Wright-Blodgett Lumber Company; that it was abandoned some years ago; ¿fid, moreover, that it contains a potestative condition, and hence is null. Defendants, therefore, pray that plaintiff’s demand be rejected, and those of them, who are the heirs of John Legg, pray that they be recognized as the owners of said property, and for the cancellation of the inscription in the conveyance records of certain documents, unnecessary to mention, affecting the title to the land. The lower court, after trial on the merits, rendered judgment in favor of defendants, including as such, the heirs of John Legg. Plaintiff has appealed from that judgment. In this court plaintiff has filed a motion to dismiss the demands contained in defendant’s answer for want of proper parties. In their brief learned counsel for the plaintiff explains his position, by saying: “The court’s attention is invited to the fact that the motion is not filed for the dismissal of the case, as such action would operate, in effect, an affirmance of the judgment from which plaintiff is appellant; but, for the dismissal of defendant’s demand to annul and erase the contract for want of acceptance by the grantee, and for want of mutuality.” Counsel for plaintiff also states that those of the heirs of John Legg, who have made themselves parties to this suit,- and their coheir E. R. Legg, who was made a defendant, and we take it, the remaining defendant, by alleging the nullity of the title under which plaintiff claims, and by demanding the erasure of the inscription of that title from the conveyance records, have made themselves plaintiffs in reconvention, with respect to their demand for nullity and for the erasure of said inscription, and that the purpose of the motion to dismiss, for want of proper parties, is to eliminate that branch of the case, thus leaving plaintiff’s right to the injunction the only issue to be determined. Counsel for plaintiff also call attention to the fact that the defendants seek to cancel the deed from John Legg to the Wright-Blodgett Lumber Company, when that company, and other parties at interest, are not parties to the suit. Counsel then argue that, as the deed is not null on its face, it is not subject to collateral attack. While we think that those of the defendants, who have made themselves parties to this suit, are, properly speaking, interveners rather than plaintiffs in reconvention, but be that as it may, whether they are de *561 fendants, plaintiffs in reconvention, or interveners, there is no authority in law for entertaining a motion of this description. It is true, we have authority, and it is our duty, to dismiss appeals or transfer them to the proper appellate court, when we are without jurisdiction, or to dismiss them when the transcript has not been timely filed, or when a party to the record has not been cited to answer the appeal and the fault is imputable to the appellant, or for other sufficient cause, yet the rules of practice do not authorize or require us to determine, in advance of the consideration of the case on the merits, whether the answer of a defendant contains a defense, which is unavailing, or to be more specific, a collateral attack on a deed, when a direct action is necessary to annul the deed, should that be the case here, and if we should so find, then to dismiss that -branch of the case, as a preparatory step to the hearing and determination of the rest of the case on its merits. And the same is true as to an intervener, or as to one who may occupy that position, whatever he may term himself, should he, in his intervention, attack a deed collaterally, when a direct action is necessary. Such a matter is properly heard when the case is presented on its merits, and no motion is necessary in order to bring the matter to the attention of the court. If the court in such a case, finds that the attack made cannot be maintained, because the necessary parties are not before it, the court will not maintain it, but will make such disposition of the matter as law or equity demands. For the reasons assigned, the motion to dismiss is denied, reserving to appellant, if it should deem proper to exercise it, the right to present, in argument and brief, in the presentation of the merits of the case, its cohtentions as to the nature of the attack, and the want of necessary parties.