Opinion
No. 10243.
March 10, 1975.
APPEAL FROM EIGHTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERVILLE, STATE OF LOUISIANA, HONORABLE IAN W. CLAIBORNE, J.
Neal N. Bagwell, White Castle, for defendant-relator.
Patrick W. Pendley, Plaquemine, for plaintiff-respondent.
Before SARTAIN, ELLIS and BARNETTE, JJ.
We granted writs in this cause on the application of Mrs. Margaret Seneca Molaison and Mrs. Reeca Seneca Carline, defendants in a suit seeking partition by licitation. Relatrixes complained (1) that the assignment for trial on the merits of this cause was premature and contrary to C.C.P. Art. 1571 in that answer had not been filed and there was pending peremptory exceptions filed by them; (2) that the case was not in proper posture for trial in that Relatrixes had not completed their pretrial discovery; and (3) that such discovery is essential to the defense of their case. They filed briefs in support of their contentions.
The trial judge responded in a per curiam opinion and has completely satisfied us that his handling of these proceedings was proper in every respect.
First, a preliminary default was entered against Relatrixes on September 4 and September 10, 1974, which fact was not set forth in their application.
Second, the matter was pretried on November 19, 1974 and set for hearing on the merits on November 26, 1974, but subsequently reassigned for December 17, 1974.
Third, when discovery efforts were endeavored on October 28, 1974, and the witness refused to answer certain questions, Relatrixes made no effort to comply with C.C.P. Art. 1511 to require additional answers.
Under these conditions, the trial judge took the position that, no answer having been filed prior to the entering of preliminary defaults against Relatrixes, the exceptions filed on December 13, 1974 would be heard on December 17, 1974, the day set for trial on the merits. He declined to grant Relatrixes' motion for a continuance.
Prior to argument on the exceptions, counsel for Relatrixes served notice on the court of his intention to apply to this court for writs. Whereupon, the district judge stayed the proceedings pending further action by us.
Had these above enumerated facts been made known to us in Relatrixes' application, principally that preliminary defaults had been entered against them, we would not have granted this writ.
Accordingly, for these reasons, the writs of Prohibition, Certiorari and Mandamus issued by us on January 14, 1975, are recalled and vacated and this matter is herewith remanded.
Writs recalled and vacated.