Summary
reversing default judgment in partition action based upon La. C.C.P. art. 1703 only because judgment different in kind from relief demanded in petition, due to amendment of both the petition and attached detailed descriptive list, without service of the amended petition and list
Summary of this case from Bible v. BibleOpinion
No. 86-C-2409.
February 20, 1987. Rehearing Denied March 26, 1987.
In re Derouen, Betty; applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 85-1136; Parish of Calcasieu, 14th Judicial District Court, Div. "H", No. 85-2245.
Writ granted. Judgment of the court of appeal is reversed. The case is remanded to the district court for a new trial. The petition prayed for a "judicial partition of community property as set forth in paragraph I of the sworn detailed descriptive list of community property attached hereto and made a part hereof and labelled Exhibit P-1 for identification." La. Code of Civil Procedure article 1703, which dictates the scope of a default judgment, is applicable here either directly or by analogy. Article 1703 provides as follows: "A judgment by default shall not be different in kind from or exceed in amount that demanded in the petition." La. Code Civ.Proc.Ann. art. 1703 (West 1961). On remand the court should proceed in accordance with R.S. 9:2801.