Choppin v. Dauphin

Citations

• 112 La. 103
• 36 So. 287
• 1904 La. LEXIS 372

Syllabus

<p>LIMITATIONS — JUDGMENT — SETTING ASIDE — EBAUD — DISCOVERY—DESCENT AND DISTRIBUTION — RECOVERY OE INTERESTS — PLEADING— AMENDMENT — INTERVENTION.</p> <p>1. The action to annul a judgment fol- fraud is prescribed by one year, dating from the discovery of tttó fraud, and the burden of proof is on the plaintiff in nullity to show when the discovery was made. If the evidence leave this date in doubt, the prescription will be maintained, especially where the information as to the_ alleged fraud was communicated to the plaintiffs by letter, and the letter is not produced nor its nonproduction accounted for.</p> <p>2. A mere general statement that the discovery was made within the year will not suffice, particularly where, from the circumstances of the case, the probability is strong that it was made sooner.</p> <p>3. Where by judgment a succession has been closed, and the executrix discharged and sent into possession as universal legatee, and 10 years afterwards the heirs of the first wife of the deceased bring suit against this universal legatee, and allege that certain property, of which one-half belonged to the first community, was fraudulently abstracted by her from the succession, and is now in her possession, and pray judgment directly in their own favor for their half of this property, thereby seeking relief outside of the succession proceedings, and on the theory that the ownership of the property in question can be litigated directly between themselves and the defendant individually, and the case is tried on the issue as to whether the property in question belonged or not to the first community, the plaintiffs cannot, after the evidence has been closed and the case fixed for argument, file a supplemental petition asking that the judgment closing the succession 'and discharging the executrix and sending her into possession be annulled, and the succession be reopened, and the defendant be destituted as executrix, and a dative testamentary executor be appointed,