1125 Precedential Processed

Fountain v. AMERICAN EMPLOYERS'INSURANCE CO.

Louisiana Court of Appeal, Third Circuit · Filed February 18, 1964 · 161 So. 2d 120

Also decided on this docket: La. Ct. App. 4th Cir., December 16, 1963 156 So. 2d 245; La. Ct. App. 1st Cir., April 21, 1964 163 So. 2d 127; La., June 15, 1885 37 La. Ann. 638; La., July 15, 1881 33 La. Ann. 1138

Cited by

Distinguished in 1

Succession of Mary Louida Arceneaux Lefort La. Ct. App. 3d Cir. 2009
Succession of Lefort 27 So. 3d 1021 La. Ct. App. 1st Cir. 2009
Rainey v. Entergy Gulf States, Inc. 885 So. 2d 1193 La. Ct. App. 1st Cir. 2004
Fuller v. State, DOTD 615 So. 2d 494 La. Ct. App. 1st Cir. 1993
Simoneaux v. SUN ERECTION COMPANY 531 So. 2d 1136 La. Ct. App. 4th Cir. 1988
Salvo v. Picard 303 So. 2d 900 La. Ct. App. 1st Cir. 1974
Gulfco Finance of Livingston, Inc. v. Lee 224 So. 2d 524 La. Ct. App. 1st Cir. 1969
Magee v. Stacey 223 So. 2d 194 La. Ct. App. 1st Cir. 1969
Carroll v. Zurich Insurance Co. 200 So. 2d 765 La. Ct. App. 1st Cir. 1967
Fountain v. American Employers' Insurance 163 So. 2d 127 La. Ct. App. 1st Cir. 1964

Authorities cited

Identified automatically; this list may not be exhaustive.

Navarro v. Derbes 211 La. 384
Roe v. Caldwell 138 La. 652
Williams v. Brown 142 So. 2d 865
Allen v. George E. Breece Lumber Co. 139 So. 73
West v. Green 131 So. 595

Opinion text

161 So.2d 120 (1964) Vonnie FOUNTAIN and Mrs. Norma Cruse, Plaintiffs-Appellants, v. The AMERICAN EMPLOYERS' INSURANCE COMPANY, Defendant-Appellee. No. 1125. Court of Appeal of Louisiana, Third Circuit. February 18, 1964. *121 William C. Boone, Leesville, for plaintiffs-appellants. Cavanaugh, Hickman, Brame & Holt, by Frank M. Brame, Lake Charles, for defendant-appellee. En Banc. PER CURIAM. The defendant-appellee has moved to dismiss the appeal on certain grounds arising out of the death of one of the original plaintiffs herein, Harvey Cruse. Cruse and Vonnie Fountain, his co-plaintiff, brought suit to recover a monied judgment from the defendant insurer. After trial on the merits in 1962, judgment was rendered dismissing the suit of both plaintiffs. The judgment was signed on November 29, 1963. The plaintiffs, in obtaining their order of appeal from the judgment dismissing their suit, alleged that Harvey Cruse was accidentally killed on September 13, 1963 that is, before the date of the judgment appealed from. By allegations to this effect, an attempt was made in the motion to appeal to substitute the widow and minor children of the decedent Cruse as parties to this suit and to this appeal. The motion of the defendant-appellee to dismiss the appeal is primarily based on allegations that the widow was not confirmed as administratrix of the decedent's estate and as tutrix of the minor children. We do not reach this question, however, as we do not have before us the situation that would be presented if an appellant or an appellee had died during the pendency of an appeal, in which case Rule XIII, Uniform Rules of the Court of Appeal (1963), 8 LSA-R.S. provides the appropriate procedure to be followed. In the present case, the plaintiff was dead at the time the judgment against him was signed. Under such circumstances, the judgment against him was a nullity, and the appeal should be dismissed insofar as pertaining to this null judgment. Navarro v. Derbes, 211 La. 384 , 30 So.2d 126 ; Roe v. Caldwell, 138 La. 652 , 70 So. 548 ; Williams v. Brown, La.App. 3 Cir., 142 So.2d 865 . Cf. also: Allen v. George E. Breece Lbr. Co., 19 La.App. 127 , 2 Cir., 139 So. 73 ; West v. Green, 15 La.App. 216 , 2 Cir., 131 So. 595 . We will therefore sustain the motion to dismiss the appeal as to the widow and children of Harvey Cruse, the deceased plaintiff. The appeal taken by the co-plaintiff is still pending, of course. We point out that, by appropriate substitution in the lower court proceedings, judgment may properly be rendered against the Cruse parties, and, if the appeal is taken, and the supplemental appellate record in this regard filed in this court expeditiously, it is quite probable that the hearing of the Cruse appeal can be heard at the same time as the hearing on the related Fountain appeal, which is still pending herein and has been fixed for hearing. For the reasons assigned, we dismiss without prejudice this appeal, insofar as concerning the Cruse parties. Appeal dismissed as to Cruse parties.