Oglesby v. Turner

Citations

• 124 La. 1084
• 50 So. 859
• 1909 La. LEXIS 593

Syllabus

<p>Pleading (§ 228'*) — Wills (§§ 111, 457*) — Action in Nullity — Pleading—Dismissal.</p> <p>Plaintiff sued the defendants to have declared null and void a nuncupative will by public act which had been probated in the district court, where the action in nullity was instituted on certain named grounds, which were alleged to be apparent on the face of (he instrument.</p> <p>Before issue joined defendants excepted that plaintiff’s petition disclosed no cause of action. The district judge, on trial of the exception, discussed each asserted ground of nullity, and, finding none well grounded in law, so declared, sustained the exception, and dismissed the suit. Plaintiff appealed, claiming that the district judge had disposed of the case on its merits when it was not at issue. The course pursued by the trial judge was justified. There was no attack made by defendants upon plaintiff’s pleadings. They were explicitly set out; but, assuming the facts to be as alleged by plaintiff, the facts as so alleged did not carry as a consequence the nullity of the will.</p> <p>(Syllabus by the Court.)</p>