Hunter v. Martien

SOMMERVILLE, J. The plea of prescription of one year, filed by the defendant wife, to a suit filed in 1913, to have a dation en paiement made to her by her husband in 1908 declared to be a simulation and to be set aside, should be supported by evidence, in the absence of sufficient averments in the petition to sustain the plea. It does not appear whether the dation was preceded by a judgment in favor of the wife, or not. The petition is not entirely clear as to whether it is therein alleged that the dation complained of was a simulation, or an act sought to be revoked on the grounds set forth. Cross on Pleadings, §§ 324, 331; Lawson v. McBride, 121 La. 282, 46 South. 312; Olivier v. Majors, 133 La. 764, 63 South. 323. The transcript in the case is so insufficient, and is so carelessly prepared, that it cannot serve the court for the purposes for which it was designed. It does not show that any evidence was offered on the trial of the plea of prescription, or that the case was put at issue by S. W. Martien, or that it was tried on the merits, although there is a judgment dismissing plaintiff’s suit at his cost. It is ordered, adjudged, and decreed that the judgment appealed from be reversed, that the plea of prescription filed by Mrs. Ella H. Martien be referred to the merits, and that the case be remanded to the district court to be tried in accordance with law. Costs of appeal to be paid by appellees.