Eggleston, Chester A.

English

Louisiana State University: DigitalCommons @ LSU Law Center

Louisiana Law ReviewVolume 17 | Number 3Golden Anniversary Celebration of the Law SchoolApril 1957Louisiana Practice - Third-Party Practice -Necessity for Plaintiff to Assert Demand AgainstThird-Party Defendant to Obtain JudgmentAgainst HimChester A. EgglestonThis Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationChester A. Eggleston, Louisiana Practice - Third-Party Practice - Necessity for Plaintiff to Assert Demand Against Third-Party Defendant toObtain Judgment Against Him, 17 La. L. Rev. (1957)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol17/iss3/18NOTESLOUISIANA PRACTICE - THIRD-PARTY PRACTICE - NECESSITYFOR PLAINTIFF To ASSERT DEMAND AGAINST THIRD-PARTYDEFENDANT To OBTAIN JUDGMENT AGAINST HIMDefendant contractor was sued for the replacement cost of adefective roof. Defendant called the material supplier as a third-party defendant, and the supplier in turn called the materialmanufacturer as a third-party defendant. Plaintiff did notamend his petition so as to seek a judgment against the third-party defendant manufacturer. The district court rendered judg-ment in favor of the plaintiff against the manufacturer. Onappeal, the Orleans Court of Appeal held, reversed. In order tobe entitled to judgment against a third-party defendant underthe Third-Party Practice Act, plaintiff must file an amendedpetition asking that the third-party defendant be made a directdefendant as to plaintiff. Ferrantelli v. Sanchez, 90 So.2d 351(La. App. 1956).The Third-Party Practice Act,' adopted in 1954, is takenfrom the pertinent articles of the proposed revision of the Codeof Practice now being drafted by the Louisiana State Law In-stitute.2 These provisions of the proposed Code of Practice werein turn closely patterned after the federal third-party practice.31. LA. R.S. 13:3381-3386 (1950).2. LOUISIANA STATE LAW INSTITUTE, EXPOS]t DES MOTIFS No. 7, 59-68, 79-85(Rules of Pleading and Practice in Ordinary Process, Title I, Pleading, Book II,Arts. 43-51, 62-67) (April 23, 1953), as amended by the Committee on Semantics,Style and Publications on August 1-2, 1953, and by the Council of the Instituteon December 11-12, 1953.3. FED. R. Cw. P. 14, as amended on December 27, 1946. "[T]he LouisianaState Law Institute recommended that the call in warranty be discarded, and thatthere be substituted the 'third-party action,' based substantially upon federalthird-party practice." McMahon, Courts and Judicial Procedure, 15 LOUISIANALAW REVIEW 38, 47 (1954)."The most radical change proposed in the entire field of pleading is the dis-carding of our present call in warranty and the acceptance of the third-party prac-tice of the Federal Rules in lieu thereof." LOUISrANA STATE LAW INSTITUTE,EXPOS] DES MOTIFS No. 7, p. 80 (Rules of Pleading and Practice in OrdinaryProcess, Title I, pleading, Book II, Art. 62, comments) (April 23, 1953), asamended by the Committee on Semantics, Style and Publications on August 1-2,1953, and by the Council of the Institute on December 11-12, 1953.However, as pointed out by Professor Henry G. McMahon, supra at 47, thereare at least three major differences between the two acts. First, whereas underfederal practice the plaintiff may only bring in "a person not a party to theaction," the Louisiana statute provides that the third-party defendant may be "anyperson, including a co-defendant." (Compare FED. R. CIV. P. 14(a) with LA. R.S.[636]1957] NOTES 637Prior to the adoption of the Third-Party Practice Act, the Lou-isiana counterpart to the third-party practice provisions ofAnglo-American jurisdictions was the call in warranty.4 Seriousinadequacies of the call in warranty evinced a need for remediallegislation.5 Under the call in warranty it was not possible forthe plaintiff in the principal action to obtain a direct judgmentagainst the warrantor of the defendant.6 The newly adoptedThird-Party Practice Act allows the plaintiff in the principalaction to "assert any demand against the third-party defendantarising out of the transaction or occurrence that is the subject ofthe principal demand."'7The instant case is the first Louisiana decision holding thatplaintiff can obtain a judgment against the third-party defend-ant only by asserting his demand against the third-party de-fendant by amended petition. Noting the absence of a Louisianadecision on the question,8 and the similarity between the Lou-isiana and the federal legislation,9 the court supported its inter-pretation of the Third-Party Practice Act with a federal courtdecision.' 013:3381 (1950)). Second, federal practice requires the defendant to move forleave to bring in the third-party defendant, and permission is within the discre-tion of the trial judge. FED. R. Civ. P. 14(a). The Louisiana statute granted tothe defendant a right to bring in a third party. LA. R.S. 13:3381 (1950). Third,in federal practice only the summons and a copy of the third-party complaint mustbe served upon the third-party defendant. FED. R. Civ. P. 14(a). The Louisianastatute requires the service of a citation and a certified copy of all the basic plead-ings upon the third-party defendant. LA. R.S. 13:3384 (1950).4. LA. CODE OF PRACTICE arts. 380-388 (1870).5. For a general discussion of the inadequacies of the former call in warranty,see McMahon, Courts and Judicial Procedure, 15 LOUISIANA LAW REVIEW 38, 46(1954).6. LA. CODE OF PRACTICE arts. 380-388 (1870).7. LA. R.S. 13:3381 (1950).8. This is the first case presenting this question of interpretation of the Third-Party Practice Act. Since the adoption of the statute in 1954, the appellate courtshave had only two other occasions to construe its provisions. See Automotive Fi-nance Co. v. Daigle, 80 So.2d 579 (La. App. 1955) ; Motors Securities Co. v.Hines, 85 So.2d 321 (La. App. 1956).9. The provisions of the two statutes relevant to the question raised in theinstant case are almost identical.FED. R. Civ. P. 14(a) : "The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subjectmatter of the plaintiff's claim against the third-party plaintiff."LA. R.S. 13:3381 (1950) : "In such cases the plaintiff in the principal actionmay assert any demand against the third-party defendant arising out of the trans-action or occurrence that is the subject of the principal demand."10. United States v. Lushbough, 200 F.2d 717 (8th Cir. 1952). In that casethe court held that the plaintiff must assert his demand against the third-partydefendant in order to obtain a judgment against him.There seems to be no doubt that federal practice requires such an assertion inorder to be entitled to a judgment against the third-party defendant. See 3 MOORE,FEDERAL PRACTICE, C. 14, § 14.01, p. 405 (History of Rule; Committee Notes, (3)Committee Notes of 1946 to Rule 14 (2d ed. 1948).LOUISIANA LAW REVIEWThe holding in the instant case seems to be sound. The statu-tory language that plaintiff "may assert" his demand againstthe third-party defendant neither indicates that it is mandatorythat the assertion be made, nor that a judgment is to be renderedbetween the third-party defendant and the plaintiff in the ab-sence of such an assertion. The rule requiring the plaintiff inthe principal action to assert a demand against the thiry-partydefendant in order to recover a judgment directly against himwas probably intended by the Louisiana State Law Institute inthe interest of orderly procedure. Orderly procedure requiresthat a judgment adjudicate only the legal issues raised by thepleadings. A contrary practice might preclude a third-partydefendant from asserting a valid defense such as set-off or com-pensation which would be available against the plaintiff in theprincipal action, but which would not be available against thethird-party plaintiff.Chester A. EgglestonMINERAL RIGHTS - HORIZONTAL DIVISION OF A SERVITUDEPlaintiff landowner sued to cancel a one-fourth mineral servi-tude, specially pleading prescription of ten years for non-usage.The servitude had been created on an eighty-acre tract of landby a sale of minerals to defendant in 1939. No exploration oc-curred on the premises during the ten-year prescriptive periodfollowing the sale, but in 1947 the tract was included in a drill-ing unit established by the Commissioner of Conservation whichwas restricted to the Kilpatrick Zone. A producing well was lo-cated in the unit but not on the tract. The landowner contendedthat since there had been no drilling on the tract during the pre-scriptive period the entire servitude was lost because of non-user, or, alternatively, that the conservation order created a hori-zontal division or restriction of the servitude and therefore anyinterruption of prescription should be limited to the KilpatrickZone. The district court rejected these contentions, ruling thatthe prescription of the servitude on the entire tract had been in-terrupted. On appeal to the Supreme Court, held, affirmed. Pro-duction from a well in a compulsory drilling unit is a user of themineral servitudes on all tracts of which the unit is comprised,and therefore interrupts the prescription of every mineral servi-tude within the unit. As to the alternative claim, since the user of[Vol. XVII

Louisiana Practice - Third-Party Practice - Necessity for Plaintiff to Assert Demand Against Third-Party Defendant to Obtain Judgment Against Him

https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=2498&context=lalrev

Louisiana Practice - Third-Party Practice - Necessity for Plaintiff to Assert Demand Against Third-Party Defendant to Obtain Judgment Against Him

Abstract

Similar works

Full text

Available Versions

Louisiana State University: DigitalCommons @ LSU Law Center