Parker v. Ricks

Citations

• 114 La. 942
• 38 So. 687
• 1905 La. LEXIS 574

Syllabus

<p>TRIAL — CASE SUBMITTED — REOPENING—MOTION EOR NEW TRIAL — CONTRADICTORY STATEMENTS — MINOR’S PROPERTY — SALE — PRESCRIPTION.</p> <p>1. A motion to reopen a cause after a case has been argued, submitted, and taken under advisement must, in the nature of things, be left to the discretion of the - court of original jurisdiction. After a case has been submitted, its decision is the only thing which remains to be done.</p> <p>2. If this motion on appeal be considered as in substance a motion for a new trial, in order that it may receive consideration it should be made to appear by affidavit of the mover that he had discovered evidence material to the cause since the case was submitted; that he had used every effort and diligence. Essential averments and affidavit are wanting. '</p> <p>3. A new trial will not be granted to prove issues in direct contradiction of the allegation of the plaintiff in motion.</p> <p>The defendant sets up his title and annexes his deed in which the property is treated as community.</p> <p>The district court declined to permit defendant to contradict his averments — a discretion with which an appellate court can find no good ground to interfere.</p> <p>4. The warrantor alleged that he had separate rights which diminished the extent of plaintiff’s interest. No attempt was made to substantiate these allegations by proof.</p> <p>5. The sale pleaded by defendant and warrantor, and the purchase under which the former claimed the right to hold, was not legal. The property could not be sold at private sale in order to obtain the sale’s avails for the purpose of paying the schooling of the minors,, and to further enable the tutor to carry out speculative views, however good the intention may have been.</p> <p>6. The plea of prescription did not run against minors. Prescription was suspended during their minority, and therefore their claim is not prescribed.</p> <p>(Syllabus by the Court.)</p>