Opinion
No. 6156.
October 17, 1977.
APPEAL FROM TWENTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY, STATE OF LOUISIANA, HONORABLE ISOM J. GUILLORY, JR., J.
Onebane, Donohoe, Bernard, Torian, Diaz, McNamara Abell by E. Randall Lolley, Lafayette, for appellant.
Boagni Genovese by James T. Genovese, Opelousas, for plaintiff-appellee.
Before DOMENGEAUX, WATSON and FORET, JJ.
Manson Morello, who did not appear as a party in the proceedings in the trial court, has appealed the default judgment in this case which quieted the tax title and recognized plaintiff, Mrs. Curtis Leger (Shirley Wilson Leger), as the sole owner of property described as follows:
1 Lot 3.831 acres lot # 2, in Section 25, T-7-S, R-3-E
The plaintiff opposes the appeal and has filed a peremptory exception of no cause and no right of action in this court. Defendant, Andrew Begnaud, was not served and did not make an appearance in the trial court except through a curator ad hoc, and has made no appearance in this court.
The issues are as follows:
(1) does Manson Morello have the right to appeal?
(2) if so, is the judgment rendered by the trial court defective, and should the judgment be reversed and the proceeding remanded?
The facts are not complicated. Mrs. Leger filed a petition in the trial court alleging: that she is the sole and only owner of the property described above; that she was the successful bidder on the property at a tax sale conducted by the sheriff of St. Landry Parish on June 10, 1970; that the sheriff executed a tax deed to her; that more than five years have elapsed since the date of the registry of the tax title and she is now entitled to be confirmed and quieted in her ownership of the property in accordance with LSA-R.S. 47:2228 and related statutes.
The tax deed by which Mrs. Leger claims to have acquired the property was not introduced into evidence at any time nor was a certified copy attached to her petition. The record does not reflect an attempt to make service of process on Andrew Begnaud, the person to whom the property was allegedly assessed at the time of the tax sale.
There appears in the record a motion and order to appoint a curator ad hoc to represent Andrew Begnaud and the curator ad hoc accepted service, waived citation but reserved all other rights. The curator ad hoc prepared and filed a written answer on behalf of Begnaud, denying the allegations of plaintiff's petition on information and belief.
A transcript of the proceedings which took place on January 11, 1977 is contained in the record. Present were the attorney for plaintiff and the curator ad hoc. The plaintiff testified to the various allegations of her petition. (TR. 2-4) The curator ad hoc also gave testimony. He verified that he had been appointed to represent Begnaud; that he did not find a double assessment; and that, according to his information, Mr. Begnaud ". . . was still the current owner . . ." of the property. (TR. 5) No tax deed was introduced in the proceedings nor was any evidence presented concerning service on Begnaud or the fact that he was an absentee.
On the date reflected in the transcript of the court proceedings, a judgment was signed by the trial court confirming Mrs. Leger as owner and quieting title in her name.
As to the first issue, whether Morello can appeal, the provisions of LSA-C.C.P. art. 2086 are controlling. It reads as follows:
"A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken."
In his petition for appeal, Morello affirmatively asserted that he is the owner of the property forming the basis of the suit and that he would have had the right to intervene in the trial court. The law exacts no additional requirement and we conclude that Morello has the right to appeal. Lamp v. Willowdale Nursing Home, Inc., 296 So.2d 442 (La.App. 4 Cir. 1974).
The next issue is whether there are vices in the proceedings and deficiencies in the evidence, requiring the reversal of the judgment by the trial court. It is elementary that one seeking to prove his title acquired in a tax sale must not only allege but also prove up his tax deed. Cf. Xeter Realty v. Samorini, 135 La. 976, 66 So. 318 (1914). The plaintiff did not do so in these proceedings. It is also elementary that, before a curator ad hoc can be appointed to represent an absentee, there must be a showing that the defendant is in fact an absentee, usually by demonstrating that service was attempted but failed. Wood v. Hyde, 209 So.2d 51 (La.App. 4 Cir. 1968) There is no such showing in these proceedings. Therefore, on at least two different grounds, the judgment of January 11, 1977, is invalid and must be set aside. For the reasons assigned, the judgment of January 11, 1977 of the Twenty-Seventh Judicial District Court recognizing Mrs. Curtis Leger (Shirley Wilson Leger) as owner of the following described property:
1 Lot 3.831 acres lot # 2, in Section 25, T-7-S, R-3-E
is reversed and set aside, and this cause is remanded for further proceedings. The peremptory exception of no right and no cause of action filed in the court by plaintiff-appellee and relating to the petition for appeal is overruled.
Costs of the appeal are taxed against the plaintiff-appellee.
REVERSED AND REMANDED.
I agree with the reversal and remand, but will elaborate further on the rights of Morello to appeal. Appellee, Mrs. Leger, contends that Morello has no right to appeal, asserting this claim by means of the peremptory exception of no cause of action and no right of action.
In support of the exception of no cause of action, appellee contends that Morello has failed to represent and substantiate his interest in this case which appellee maintains is a requisite under Louisiana Code of Civil Procedure Articles 1091 and 2086. This reasoning by appellee is circuitous. The reason that Morello filed this appeal was to obtain an opportunity to present to the Trial Court evidence of his ownership interest in the subject property. All that is necessary for appellant's right to appeal is that he be aggrieved by the Trial Court judgment. If appellant is indeed the owner of the property, as he urges, then certainly he would be aggrieved by the Trial Court judgment. The petition for appeal filed by Manson Morello clearly recites that he claims the ownership of the property forming the basis of this lawsuit. This allegation alone is sufficient to defeat appellee's exception of no cause of action, for the law of Louisiana is clear that before an exception of no cause of action can be maintained the allegations of a petition (and attached exhibits) must on their face, without viewing extrinsic evidence, show that a party has no cause of action. Furthermore, the reasoning of appellee overlooks, the fact that an appellate court cannot view anything that is not in the record of the trial court proceeding at the time of the appeal. If an appellant in circumstances like that presented in this case had to "substantiate his claim" in the manner in which appellee contends, then Article 2086 would be effectively read out of the Code of Civil Procedure. There is no manner in which an appellant in these circumstances can so substantiate his claim with us, since any evidence in support thereof would not be a part of the record and could not be considered by the appellate court. It is clear that Morello, by alleging that he has an interest in the property and is aggrieved by the judgment, has made sufficient allegations to defeat the exception of no cause of action and has sufficiently alleged grounds for filing this appeal herein.
DOMENGEAUX, J., concurs and assigns reasons.