Thompson v. Vance

Citations

• 111 La. 548
• 35 So. 741
• 1903 La. LEXIS 557

Syllabus

<p>THING .ADJUDGED—PLEADING.</p> <p>1. Where the “thing adjudged” is relied on it must be specially pleaded, and, in the absence of such plea, cannot be proved over an objection properly made.</p> <p>2. A. and B. have litigated to judgment the-question as to which of them shall be paid by preference from a fund in the hands of the sheriff, and the case is pending on appeal in this court.</p> <p>In that situation C. files an opposition, in the district court, propounding an original claim (as-upon notes secured by mortgage upon the property from the sale of which the fund was derived), and praying that, in case the mortgage of B. be decreed invalid, he be awarded the whole fund, or, in any event, that he be paid next after B. Before A. or B. appear to except or answer, there is judgment by this court decreeing that A. is entitled to be paid by preference over B., and thereafter, upon the trial of C.’s opposition, he offers a record and decree in a suit between him and A. to which B. was not a party, and in which it had previously been decided that he was entitled to a preference over A. quoad the property in question,, and to this offer A. and B. objected, the former on the ground that the matter offered was not pertinent to the issues presented by the pleading, the latter on the ground that it was res inter alios acta. After hearing, the demand of' O. was rejected by the district court, and upon his appeal to this court he admits that his claim is interior in rank to the claim of B., but insists that it shall be decreed to be superior in rank to the claim of A.</p> <p>Held: That the record offered by A. was obnoxious to the objections made by the other litigants, and should have been excluded; and, in view of that fact of the admission made by C.,. and of the judgment in the suit between A. and B., that said judgment and admission must be accepted as the law of the case as here presented.</p> <p>(Syllabus by the Court.)</p>