Opinion
No. 38454.
March 17, 1947.
Appeal from Civil District Court, Parish of Orleans; Harold A. Moise, Judge.
Action by Segundo Brenes Navarro and others against Charles J. Derbes and others. From a judgment of dismissal, plaintiffs appeal. On a motion by defendant Derbes' widow and heirs after his death to dismiss the action as to them.
Appeal dismissed as to defendant Derbes and his widow and heirs or legal representatives.
Theodore H. McGiehan, of New Orleans, for plaintiffs-appellants.
S. J. Parlongue and John F. Stafford, both of New Orleans, for defendants-appellees.
Counsel for the appellees, representing the widow and heirs of the late Charles J. Derbes, one of the parties defendant in the above entitled case, has moved that the appeal taken from the judgment of the lower court dismissing the suit of the plaintiffs be dismissed as to them for the reason that the said Charles J. Derbes died on October 11, 1946, prior to the rendition of the judgment in the matter on October 14 and its signing by the trial judge on October 22.
Although the proceedings in the district court were valid up to the moment of Mr. Derbes's death, at that instant the action abated as to him (Cambon Bros. v. Suthon, 148 La. 669, 87 So. 512; West v. Green, 10 La.App. 707, 122 So. 128) and all proceedings taken thereafter without his legal representatives having been made parties were absolute nullities (Bates v. Weathersby, 2 La.Ann. 484; Succession of Pickett, 41 La.Ann. 882, 6 So. 655; Atkins v. Smith, 204 La. 468, 15 So.2d 855), subject to attack at any time. Edwards v. Whited, 29 La.Ann. 647.
The request of the plaintiff-appellants that the appeal instead of being dismissed be remanded in order to make certain minor heirs "parties Defendant in accordance with law," would avail them nothing in the instant case for the reason that the judgment rendered in the case as to Derbes and the order of appeal therefrom are, on their face, absolute nullities, and the fact that pursuant to the motion for the appeal the heirs were caused to be served with a copy of the order of appeal and cited to answer the same does not cure the absolute nullity of the judgment rendered affecting a dead person. The appeal from such judgment was not only improvidently granted, but is without effect.
For the reasons assigned the appeal is dismissed in so far as it affects Charles J. Derbes, deceased, his widow, heirs, or legal representatives.