Town of Minden v. Stewart

On the Merits. [3] The defendants in these consolidated • cases filed exceptions to the petition of plaintiff on the ground of no cause and no right of action. When these exceptions were called for trial, January 16, 1914, they were heard and ordered to be referred to the merits, and to stand as parts of the answers of defendants. The exceptions are purely exceptions, and should have been disposed of, and not have been referred to the merits of the cause. There is some amplification in the exceptions going to show wherein the right or cause of action did not exist in plaintiff, but they were preliminary matters and properly formed parts of the exceptions. “An exception of no cause of action * * * should be passed on before passing on the merits.” Rogers v. Southern Fiber Co., 119 La. 714 , 44 South. 442 . “Peremptory exceptions founded on law do not go into ‘the merits of the cause,’ and may be pleaded in every stage of the action previous to the definitive judgment.” Bijou Co. v. Lehmann, 118 La. 956 , 43 South. 632 . “An exception of no cause of action not being an answer, even though filed after default, cannot be ordered by the trial court to stand as an answer; and such an order, though made, upon a rule to show cause, cannot deprive the defendant of his rights to file an answer.” Davenport v. Ash, 121 La. 210 , 46 South. 213 . “The .defendant has the legal right to have the exceptions disposed of as exceptions, and of this legal right she has been deprived by the unwarranted action of the lower court. This court has again and again animadverted upon the deplorable practice of referring to the.merits exceptions that do not involve the merits.” New Orleans Terminal Co. v. Teller, 113 La. 733 , 37 South. 624 , 2 Ann. Cas. 127. [4] On the same day on which the exceptions were overruled and ordered to stand, as parts of the answers, the cases were fixed for trial on March 9, 1914. In the meantime the court was in recess; or, rather, the judge from the adjoining district who had been called to try these cases was not in the parish of Webster during that interim. On March 9, 1914, the defendants filed answers in which they specifically reserved the benefits of the exceptions theretofore filed, and they prayed for a trial by jury. The prayer for a jury was denied, contrary to the law which grants to defendants the right to a trial by jury. Thereupon the defendants asked for a continuance on the ground that they were entitled to a trial by jury, and were not prepared with their evidence to go to trial on that day, and on the further ground that their leading counsel had a case fixed for trial in the parish of Orleans which he had asked to be continued and the continuance had been refused, and he could not therefore be in attendance on the trial of these cases. The motion for a continuance was denied, and defendants reserved bills of exceptions. The court ruled that the prayer came too late, after the cases had been fixed for trial, and that the exceptions, under the ruling of the court, were just as effective as answers, and stood as such, just the same as they would have been had they been filed as answers to start with. “The court considered that the applications were made for delay.” In ordering the exceptions to be tried with the merits of the cause, the court recognized the right of the defendants to answer, and the answers or supplemental answers were filed in time, and before default was taken against the defendants. In answering, defendants had the right'to ask for trial by jury, and this could not be denied them on the technicality that the case was at issue and fixed for trial on an exception of no cause or right of action, which had been wrongfully referred to the merits and ordered to stand as “a part of the answer” in each case. Defendants had the legal right to have their cases tried before a jury. And the court, in refusing the prayer for a jury, and proceeding with the trial of the cause on the *475 merits, over the objections of the defendants, erred, and the case will have to be remanded for trial. Tlie Code of Practice provides in article 495 that the defendant, in order to avail himself of a trial by jury, must pray for a jury in bis answer, or previous to the suit being set down for trial; and if in bis answer tlie defendant bas only declined tbe jurisdiction of the court, without answering to the merits, he may, if his plea be overruled, pray for a jury in his answer to the merits. Tnese cases cannot be legally said to have been fixed until answers were filed. Tbe illegal fixing before issue was joined, either by answer to the merits or by default, could not deprive tbe defendants of the right the law gives them to present their cases to a jury. The defendants in these cases had no reason to believe that a trial by jury would be denied them, and the asking for a jury was at the very first sitting of the special judge when he appeared in tbe parish or on the bench, since the exceptions were referred to the merits. There does not appear to have been any delay on the part of the defendants in answering and applying for a trial by jury. It further appears that the judgments are in error in these cases, as they are personal judgments. The claims are for the cost of paving sidewalks, and they are strictly in rem. In such cases no personal liability attaches. It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed; and that these cases be remanded to the district court to be proceeded with in accordance with law, and with the views herein expressed. Costs of appeal to be paid by plaintiff and appellee. O’NIELL, J., dissents from the ruling that this court has jurisdiction.