Vigo v. Carlon

ON Motion to Dismiss. The opinion of the court was delivered by Wyley, J. The plaintiff having cast the defendant in this posses-sory action complains that since the defendant took the appeal herein he has brought a petitory action against, the plaintiff in the Fourth District Court for the same property, and inasmuch as pos-sessory and petitory actions can not be cumulated without consent (C. P. 55) the plaintiff contends that the suit thus brought by the defendant pending this appeal amounts to a voluntary execution of the judgment appealed from, or an abandonment thereof. He accordingly moves to dismiss the appeal for the reason stated. The position is not maintainable. Art. 55, C. P., declares that: “ Petitory and possessory actions shall not be cumulated or joined together, except by consent of parties. Therefore he who is sued in a pos-sessory action can not bring a petitory action until after judgment shall have been rendered in the possessory action, and until, if he has been condemned, he shall have satisfied the judgment given against him.” It may be that pending the controversy in this possessory action against him, the defendant had no right to bring the petitory action complained of, but the remedy was an exception to the suit, and the action of the court below on the exception to the petitory action could be revised on appeal by this court. A second suit having the same cause of action might well be barred in the court where it was brought by the plea of lis pendens. But having set up in a new suit the same cause of action would be no ground to dismiss the first suit pending an appeal. The bringing of a new suit pending this appeal, in contravention of Art. 55 C. P., can not be seriously regarded as a voluntary execution of the judgment or an abandonment thereof. The motion is denied.