judgment sustaining exception in Louisiana

1962The application of the legal effect of nonsuit is made in Woodruff v. Producers’ Oil Co., 142 La. 368 , 76 So. 803, 805 , where that decision quotes from Laenger v. Laenger, 138 La. 532 , 70 So. 501 , as follows: “A judgment sustaining an exception of no cause of action on the technical ground that the plaintiff omitted a necessary allegation is, in effect, a judgment of nonsuit, and does not prevent the plaintiff’s renewing his demand on sufficient allegations.” For these reasons the judgment is amended to dismiss plaintiff’s suit as of nonsuit and as thus amended the judgment is affirmed.

1962The application of the legal effect of nonsuit is made in Woodruff v. Producers’ Oil Co., 142 La. 368 , 76 So. 803, 805 , where that decision quotes from Laenger v. Laenger, 138 La. 532 , 70 So. 501 , as follows: “A judgment sustaining an exception of no cause of action on the technical ground that the plaintiff omitted a necessary allegation is, in effect, a judgment of nonsuit, and does not prevent the plaintiff’s renewing his demand on sufficient allegations.” For these reasons the judgment is amended to dismiss plaintiff’s suit as of nonsuit and as thus amended the judgment is affirmed.

1959Cady Lumber Co., 133 La. 729 , 63 So. 304, 305 , wherein the Supreme Court said: “ * * * a plaintiff who has a good cause of action may by defect of his pleadings fail to set it out, and thereby afford ground for an exception of no cause of action; that in such a case the judgment sustaining the exception of no case of action would not bar a subsequent suit on proper pleadings (Succession of Herber, 119 La. 1064 , 44 So. 888 ); but that, when, as in the present case, the allegations of the two suits are the same, the judgment on an exception of no cause or right of action is one on the merits

1913In answer, we say that a plaintiff who has a good cause of action may by defect of his pleadings fail to set it out, and thereby afford ground for an exception of no cause of action; that in such a case the judgment sustaining the exception of no cause of action would not bar a subsequent suit on proper pleadings (Succession of Herber, 119 La. 1064 , 44 South. 888 ); but that, when, as in the present case, the allegations of the two suits are the same, the judgment on an exception of no cause or right of action is one on the merits of the case, and is a bar to a subsequent suit (Baker v. Frell

2018Ramey v. DeCaire , 2003-1299, p. 9 (La. 3/19/04), 869 So.2d 114 , 119. *876 Although John concedes that on the face of the petition, any claims appear to be prescribed according to the ten-year liberative prescriptive period applicable to personal actions, he argues that his petition sets forth facts that the ten-year prescriptive period was suspended by contra non valentem , therefore shifting the burden to Lewis.

2006However, “Article 934 of the Code of Civil Procedure states that ‘[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.’ ” Ramey, 869 So.2d at 119 .

1976In commenting on this article, the court in Washington v. Flenniken Construction Company, 188 So.2d 486 (La.App.3d Cir. 1966), stated: The basis of this dismissal is the power of the court to enforce compliance with a lawful procedural order in connection with a dilatory exception, Bogan v. Byrom, La.App. 3 Cir., 151 So.2d 718 , for by definition the dilatory exception “merely retards the progress of the action” and “it is not filed in order to defeat the action”, LSA-C.C.P.

1966Under LSA-CCP Article 933, when the grounds of a dilatory exception "may be removed by amendment of the petition or other action by plaintiff, the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court; and the suit shall be dismissed only for a noncompliance with this order." (Italics ours.) The basis of this dismissal is the power of the court to enforce compliance with a lawful procedural order in connection with a dilatory exception, Began v. Byrom, La.App. 3 Cir., 151 So.2d 718 , for by definition the dilatory exception "merely retards

1962The application of the legal effect of nonsuit is made in Woodruff v. Producers’ Oil Co., 142 La. 368 , 76 So. 803, 805 , where that decision quotes from Laenger v. Laenger, 138 La. 532 , 70 So. 501 , as follows: “A judgment sustaining an exception of no cause of action on the technical ground that the plaintiff omitted a necessary allegation is, in effect, a judgment of nonsuit, and does not prevent the plaintiff’s renewing his demand on sufficient allegations.” For these reasons the judgment is amended to dismiss plaintiff’s suit as of nonsuit and as thus amended the judgment is affirmed.

1962The application of the legal effect of nonsuit is made in Woodruff v. Producers’ Oil Co., 142 La. 368 , 76 So. 803, 805 , where that decision quotes from Laenger v. Laenger, 138 La. 532 , 70 So. 501 , as follows: “A judgment sustaining an exception of no cause of action on the technical ground that the plaintiff omitted a necessary allegation is, in effect, a judgment of nonsuit, and does not prevent the plaintiff’s renewing his demand on sufficient allegations.” For these reasons the judgment is amended to dismiss plaintiff’s suit as of nonsuit and as thus amended the judgment is affirmed.

1959Cady Lumber Co., 133 La. 729 , 63 So. 304, 305 , wherein the Supreme Court said: “ * * * a plaintiff who has a good cause of action may by defect of his pleadings fail to set it out, and thereby afford ground for an exception of no cause of action; that in such a case the judgment sustaining the exception of no case of action would not bar a subsequent suit on proper pleadings (Succession of Herber, 119 La. 1064 , 44 So. 888 ); but that, when, as in the present case, the allegations of the two suits are the same, the judgment on an exception of no cause or right of action is one on the merits

1959Cady Lumber Co., 133 La. 729 , 63 So. 304, 305 , wherein the Supreme Court said: “ * * * a plaintiff who has a good cause of action may by defect of his pleadings fail to set it out, and thereby afford ground for an exception of no cause of action; that in such a case the judgment sustaining the exception of no case of action would not bar a subsequent suit on proper pleadings (Succession of Herber, 119 La. 1064 , 44 So. 888 ); but that, when, as in the present case, the allegations of the two suits are the same, the judgment on an exception of no cause or right of action is one on the merits

1921It was held .that the statute reads, ‘That when married persons have been living separate and apart for seven years or more,’ etc., and that it is not within the province of the courts to interpret it as reading shall have lived separate and apart after the promulgation of the statute, and that ruling'was affirmed in Hava v. Ohavigny, 143 La. 365 , 78 South. 594 (where it was held that in order to disclose a cause of action, under the Act of 1916, it is necessary to allege only those facts and conditions required by that statute), and again affirmed in Hurry v. Hurry, 144 La. 877 , 81 South. 3

1919The court cannot add the words ‘after the promulgation of this act.’ ” That ruling has been affirmed in Hava v. Chavigny, 143 La. 365 , 78 South. 594 , in which case it was held that the act in question does not contravene article 166 of the state Constitution, declaring that— “No ex post facto law, or any law impairing the obligations of contracts, shall be passed, or vested rights be divested,” etc. And again affirmed in Hurry v. Hurry, 144 La. 877 , 81 South. 378 (previously before the court upon an appeal from a judgment sustaining an exception of no cause of action and again brought up by

1921It was held .that the statute reads, ‘That when married persons have been living separate and apart for seven years or more,’ etc., and that it is not within the province of the courts to interpret it as reading shall have lived separate and apart after the promulgation of the statute, and that ruling'was affirmed in Hava v. Ohavigny, 143 La. 365 , 78 South. 594 (where it was held that in order to disclose a cause of action, under the Act of 1916, it is necessary to allege only those facts and conditions required by that statute), and again affirmed in Hurry v. Hurry, 144 La. 877 , 81 South. 3

1919The court cannot add the words ‘after the promulgation of this act.’ ” That ruling has been affirmed in Hava v. Chavigny, 143 La. 365 , 78 South. 594 , in which case it was held that the act in question does not contravene article 166 of the state Constitution, declaring that— “No ex post facto law, or any law impairing the obligations of contracts, shall be passed, or vested rights be divested,” etc. And again affirmed in Hurry v. Hurry, 144 La. 877 , 81 South. 378 (previously before the court upon an appeal from a judgment sustaining an exception of no cause of action and again brought up by

1919The court cannot add the words ‘after the promulgation of this act.’ ” That ruling has been affirmed in Hava v. Chavigny, 143 La. 365 , 78 South. 594 , in which case it was held that the act in question does not contravene article 166 of the state Constitution, declaring that— “No ex post facto law, or any law impairing the obligations of contracts, shall be passed, or vested rights be divested,” etc. And again affirmed in Hurry v. Hurry, 144 La. 877 , 81 South. 378 (previously before the court upon an appeal from a judgment sustaining an exception of no cause of action and again brought up by

1919The court cannot add the words ‘after the promulgation of this act.’ ” That ruling has been affirmed in Hava v. Chavigny, 143 La. 365 , 78 South. 594 , in which case it was held that the act in question does not contravene article 166 of the state Constitution, declaring that— “No ex post facto law, or any law impairing the obligations of contracts, shall be passed, or vested rights be divested,” etc. And again affirmed in Hurry v. Hurry, 144 La. 877 , 81 South. 378 (previously before the court upon an appeal from a judgment sustaining an exception of no cause of action and again brought up by

2024App. 4 Cir. 9/26/18), 257 So.3d 212, 222-23 .

2020App. 4 Cir. 9/26/18), 257 So.3d 212, 222-23 . 10 Here, the exception of no right of action was maintained on the grounds that “1031 Canal” could not recover damages incurred by the Affiliated Entities for which “1031 Canal” did not pay and/or had no legal obligation to pay.

2020App. 4 Cir. 1/25/12), 81 So.3d 1001, 1004 ].

2016Id.

2019In Matranga v. Parish Anesthesia of Jefferson, LLC , 17-73, (La.App. 5 Cir. 8/29/18), 254 So.3d 1238 , the appellate court was tasked with reviewing a judgment sustaining an exception of prescription in favor of a hospital that was added as a defendant in a medical malpractice case that had been remanded to the trial court for a new trial.

2019In Matranga v. Parish Anesthesia of Jefferson, LLC , 17-73, (La.App. 5 Cir. 8/29/18), 254 So.3d 1238 , the appellate court was tasked with reviewing a judgment sustaining an exception of prescription in favor of a hospital that was added as a defendant in a medical malpractice case that had been remanded to the trial court for a new trial.

2017Id.

2009City of New Orleans , 93-0690 at 28, 640 So.2d at 253 ; Zurich, 08-546 at 8, 8 So.3d at 96 .

2016Kent v. Epherson, 03-755 (La.App. 5 Cir. 12/9/03) , 864 So.2d 708, 713 .

2011Kent v. Epherson, 03-755 (La.App. 5 Cir. 12/9/03) ; 864 So.2d 708 .

2002Bank, 96-803 (La.App. 5 Cir. 3/25/97) ; 692 So.2d 1238 .

1999Bank, 96-803 (La.App. 5 Cir. 3/25/97) ; 692 So.2d 1238 .

1991Because we find that the mother stated a cause of action under Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), we reverse the judgment sustaining the exception and remand the matter for further proceedings.

1989Mr. Menge, appellee, cites the case of Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986), as containing the prerequisites which must be pled in a rule to modify a prior considered custody decree: When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advanta

1989Rousseau v. Employers Mutual of Wausau, 493 So.2d 121 (La.App. 5 Cir. 1986), writ not considered, 493 So.2d 1206 (La.1986); Boudreaux v. Terrebonne Parish Police Jury, 422 So.2d 1209 (La.App. 1 Cir.1982); Powell v. Ferguson, 412 So.2d 1162 (La.App. 3 Cir.1982).

1986Boudreaux v. Terrebonne Parish Police Jury, 422 So.2d 1209 (La.App. 1st Cir.1982); Fussell v. Fireman's Fund Insurance Co., 225 So.2d 727 (La.App. 1st Cir.1969); Powell v. Ferguson, 412 So.2d 1162 (La.App. 3rd Cir.1982); Devillier v. City of Opelousas, 243 So.2d 118 (La.App. 3rd Cir.1971); Sewerage and Water Board of New Orleans, supra .

1989Rousseau v. Employers Mutual of Wausau, 493 So.2d 121 (La.App. 5 Cir. 1986), writ not considered, 493 So.2d 1206 (La.1986); Boudreaux v. Terrebonne Parish Police Jury, 422 So.2d 1209 (La.App. 1 Cir.1982); Powell v. Ferguson, 412 So.2d 1162 (La.App. 3 Cir.1982).

1986The court however, did not discuss their previous decision in Fussell which held that a judgment sustaining the exception of prescription is a final judgment and two years after the Hankamer decision was rendered the first circuit reverted to their original position in Boudreaux v. Terrebonne Parish Police Jury, 422 So.2d 1209 (La.App. 1st Cir.1982). [2] Because of our findings herein, we need not decide whether the amended petition relates back to the date of the filing of the original petition.

1986Boudreaux v. Terrebonne Parish Police Jury, 422 So.2d 1209 (La.App. 1st Cir.1982); Fussell v. Fireman's Fund Insurance Co., 225 So.2d 727 (La.App. 1st Cir.1969); Powell v. Ferguson, 412 So.2d 1162 (La.App. 3rd Cir.1982); Devillier v. City of Opelousas, 243 So.2d 118 (La.App. 3rd Cir.1971); Sewerage and Water Board of New Orleans, supra .

1986Boudreaux, supra ; Fussell, supra ; Powell, supra ; Devillier, supra ; Sewerage and Water Board of New Orleans, supra .

1981Art. 934 establishes that: "When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by court." Also, see Menard v. Associated Royal Crown Bottling Co., 249 So.2d 363 (La.App. 4th Cir. 1971).

1981If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed." Also see: Menard v. Associated Royal Crown Bottling Co., 249 So.2d 363 (La.App. 4th Cir. 1971).

1974In commenting upon Article 934, above, the Supreme Court, in Hayes v. Muller, 248 La. 934 , 183 So.2d 310 (1966) made the following pertinent observations: "It is seen that the foregoing article is merely declaratory of the appropriate action to be taken by the district court in disposing of cases on peremptory exceptions.

1974In commenting upon Article 934, above, the Supreme Court, in Hayes v. Muller, 248 La. 934 , 183 So.2d 310 (1966) made the following pertinent observations: "It is seen that the foregoing article is merely declaratory of the appropriate action to be taken by the district court in disposing of cases on peremptory exceptions.

1967Woodruff v. Producers’ Oil Co., 142 La. 368 , 76 So. 803 ; Catalano v. Pritchard, 2 Cir., 19 La.App. 262 , 140 So. 100 ; Smardon v. Broussard, 1 Cir., 6 La.App. 579 ; 27 C.J.S.

1957Woodruff v. Producers' Oil Co., 142 La. 368 , 76 So. 803 ; Catalano v. Pritchard, 2 Cir., 19 La.App. 262 , 140 So. 100 ; Smardon v. Broussard, *528 1 Cir., 6 La.App. 579 ; 27 C.J.S.