Conner v. Pozo

BREAUX, C. J. This is a suit for a divorce. Plaintiff and defendant became husband and wife in the year 1886. The issue of the marriage consists of three children. The [563] oldest was 15 years of age at the date this suit was brought. She (defendant) was charged in plaintiff’s petition with acts which, if true, entitle him to a divorce. There had been litigation before other courts, in which the parties respectively sought to obtain a divorce. The demands for divorce were rejected. The issues were brought Up to this court. The judgment in one case, adverse to petition for divorce, was affirmed on appeal. Pozo, Wife, v. Connor, 107 La. 453, 31 South. 766. Defendant pleaded that plaintiff’s petition ■disclosed no cause of action, and that there was a suit pending between the parties, the costs of which had not been paid, and that it (this previous suit) sustained the plea of lis pendens pleaded. As .relates to the pleadings, the defendant answered, denying the charges brought against her by her husband. The exceptions were overruled. On the trial of the merits a number of witnesses were heard. This statement will suffice for the decision on the exception. Action of Court Overruling Exception. With reference to costs referred to in our statement of facts above, the question is disposed of by the statement that the evidence does not disclose that there is a bill of costs unpaid. Moreover, the costs, if due, were incurred in another suit, which has been finally disposed- of, and which is not connected with this suit. True, “one can discontinue suit on paying-costs and may bring the action provided he has paid costs.” Code Prae. art. 492. And if not paid, it is ground for a dilatory exception. That is all. Here no suit was discontinued, and the action is not brought anew, and therefore the question of costs, as pleaded, is not an issue which can be of any avail to the defendant, and can play no part. With reference to the lis pendens asserted defendant’s contention is substantially “that another suit is pending between the same parties for the same object, and growing out of the same cause of action, before another court of concurrent jurisdiction.” We have seen that the reason urged affords no ground to dismiss as relates to costs, and it is- equally as ineffective as relates to lis pendens. The facts do not justify the plea. There is no other suit pending-between the parties, growing out of the same cause of action. We are not made aware by the record before us of the facts which led the court to dismiss these prior suits and reject the demands made. The record only discloses that' suits were heretofore filed, and that they met with the fate just mentioned. We are not to infer that the action of the courts in the cases heretofore decided was based on testimony similar to that which is before us in this suit. The petitions and judgments admitted in evidence, without other testimony, cannot have the effect which defendant would have us give to them. The issues do not fall within the grasp of the article of the Code of Practice above cited, and it in consequence only remains for us to hold that the exception was properly overruled.