Prescott v. Spurlock

Rost, J. This is an action en declaration de simulation, which may he brought on all claims sounding- in money, although they he liquidated by a judgment, or pending in other suits, &c. 2nd Zacharie, 841; and authorities there cited. *8 R jg true that the plaintiff incidentally asks that, on the final hearing of the cause, if judgment shall not have been rendered in the suits pending upon aportion of his claim, he may have judgment for it in this suit, but that prayer is not sufficient to defeat the plaintiffs’ main action, and on proof of the claim, and of the other facts alleged, the simulation may be declared, although there should be no judgment for the amount claimed. We ai’e opinion that the exception of lis pendens should have been overruled, and the defendant allowed to proceed in his main action. It is ordered that the judgment be reversed, the exception overruled, and the case remanded for further proceedings according to law, with directions to the District Judge to proceed and decide the question of simulation. It is further ordered that the defendant and appellee pay the costs of this appeal.