Knight, Richard F.

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Louisiana Law ReviewVolume 17 | Number 4June 1957Louisiana Practice - Exceptions of Want ofCapacity and No Right of Action DistinguishedRichard F. KnightThis 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 CitationRichard F. Knight, Louisiana Practice - Exceptions of Want of Capacity and No Right of Action Distinguished, 17 La. L. Rev. (1957)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol17/iss4/10LOUISIANA LAW REVIEWof the clause. Recall that under a strict interpretation of8(d) (4), the term "expiration date" means only the date whenall rights and duties under the contract cease. If subjected tosuch an interpretation a union with a three-year contract con-taining a provision for annual reopenings would be unable tostrike to enforce demands made during the reopenings. With theunion's hands tied by statute the company could reject any de-mands made without fear of union reprisal. In this situationequality of bargaining power, a prime requisite for effectivecollective bargaining," is destroyed, although one of the purposesof the Taft-Hartley Act is to provide for such equality.9 More-over, if unions shunned long-term agreements, little progresscould be made toward the stabilization of industry sought by theCongress that enacted the Taft-Hartley Act.10F. R. GodwinLOUISIANA PRACTICE- EXCEPTIONS OF WANT OF CAPACITY ANDNo RIGHT OF ACTION DISTINGUISHEDPlaintiff, a married woman suing in her own name, appealedfrom an adverse decision in a petitory action. The court of appealreversed the decision of the trial court and decreed plaintiff to beowner of the property in question. On application for rehearing,in the court of appeal,' defendant filed an exception of "no rightand no cause of action" on the ground that the property waspresumably community property and the plaintiff had no stand-ing to sue. The exception was overruled by the court, since itfelt the exception was more appropriately an exception of wantof capacity, which being dilatory, had to be filed in limine litis.2In response to the contention that the exception questioned plain-tiff's right of action, the court was of the opinion that the recordclearly established the property in question as part of the wife'sseparate and paraphernal estate. 'The Supreme Court grantedwrits of review, and affirmed the judgment of the court of ap-peal. On rehearing, the Supreme Court held that an exceptionwhich questions the right or interest of a married woman to file8. DAUGHERTY, LABOR PROBLEMS IN AMERICAN INDUSTRY 449 (1949): "An-other requirement for successful bargaining is that both sides should be of rela-tively equal strength. There can be no actual bargaining when the employers'group dominates the union, and vice versa."9. 61 STAT. 136 (1947), 29 U.S.C. § 151 (1947).10. Ibid.1. Stevens v. Johnson, 81 So.2d 464 (La. App. 1955).2. Id. at 469.[Vol. XVII1957] NOTESa petitory action and stand in judgment in cases involving prop-erty acquired during marriage is the peremptory exception ofno right of action and not the dilatory exception of want ofcapacity. The case was remanded to the district court solely forthe purpose of trial and decision on the exception of no right ofaction, with an order to the judge to dismiss the suit if the ex-ception was well founded. Stevens v. Johnson, 230 La. 101, 87So.2d 743 (1956).Louisiana courts have been troubled for years in distinguish-ing the exceptions of want of interest, no right of action, andwant of capacity. Although the exceptions of want of interestand no right of action developed separately 3 and evolved as apart of Louisiana procedure at different periods, 4 they have cometo be regarded as no more than dual names for the same ex-ception.5 This peremptory exception, now generally referred toas an exception of no right of action, presently serves to raise3. Commercial National Bank v. Sanders, 132 La. 174, 177, 61 So. 155, 156(1913) ; Ramos Lumber & Mfg. Co. v. Labarre, 116 La. 559, 40 So. 898 (1906) ;Derouen v. Hebert, 46 La. Ann. 1388, 1391 (1894) ; Prevost v. Martel, 10 Rob.512, 515 (La. 1845) ; State v. Desforges, 5 Rob. 253, 258 (La. 1843). For a de-tailed discussion of the history of these two exceptions, see McMahon, PartiesLitigant in Louisiana, 11 TUL. L. REV. 527-33 (1937).4. The exception of want of interest had its inception in our system of pro-cedure quite early and is of continental civilian origin. It was a peremptoryexception relating to law challenging the plaintiff's interest in litigation. Brown& Sons v. Saul, 4 Mart.(N.S.) 434, 16 Am. Dec. 175 (1826). Cf. LA. CODE OF'PRAcTICE arts. 345, 346 (1870) ; MOMAHoN, LOUISIANA PRACTICE 453-60 (1939).In the Brown case, the court, during trial, noticed on its own motion the wantof interest of certain intervenors, although no exception had been filed. The ex-ception of no right of action made its appearance later, evolving as a con-comitant of the exception of no cause of action. McMahon, Parties Litigant inLouisiana, 11 TUL. L. REV. 527-33 (1937).5. Wischer v. Madison Realty Co., 92 So.2d 589, 591 (La. 1956) ; Roy 0.Martin Lumber Co. v. St. Denis Securities Co., 225 La. 51, 72 So.2d 257 (1954) :Ritsch Alluvial Land Co. v. Adema, 211 La. 675, 30 So.2d 753 (1947) ; OutdoorElectric Advertising v. Saurage, 207 La. 344, 21 So.2d 375 (1945); Leteff v.Maryland Casualty Co., 82 So.2d 80, 82 (La. App. 1955). While there is sometendency on the part of the bench and bar to treat the exceptions of no right ofaction and no cause of action as if they were synonymous, such is not the case.If it appears that a plaintiff has an actual interest in the outcome of the case,then he has a right of action. No cause of action, on the other hand, presentsthe issue of whether or not sufficient grounds for obtaining the desired reliefare alleged in the petition. Terminal v. McCormick, 208 La. 221, 23 So.2d52, 55 (1945) ; Brooks v. Smith, 35 So.2d 613 (La. App. 1948). Some of thelanguage in the Roy 0. Martin Lumber Co. case was questioned by ProfessorMcMahon in The Work of the Louisiana Supreme Court for the 1953-1954 Term-Civil Procedure, 15 LOUISIANA LAW REVIEW 376, 381 (1955). Professor Mc-Mahon pointed out that the court, in describing the function of the exception ofno right of action, spoke in terms of capacity to sue, which usage might serve.toconfuse the function of the exception of no right of action with that of the excep-tion to procedural capacity. Since that writing, the language of the Martin casehas been repeated in some subsequent cases. Liquefied Petroleum Gas Comm. v.E. R. Kiper Gas Corp., 229 La. 640, 646, 86 So.2d 518, 520, n. 2 (1956) ; Wischerv. Madison Realty Co., 92 So.2d 589, 590 (La. 1956).LOUISIANA LAW REVIEWthe question of whether the plaintiff has any interest in judicial-ly enforcing the right asserted.6 The exception of want of pro-cedural capacity, however, questions the authority of a plaintiffwho Appears in a representative capacity, or in the case wherethe Plaintiff appears individually, kaises the issue of whetherhe hag the legal capacity to institute and prosecute his suit, andto stand in jlidgment therein.7 The exception is a dilatory oneand must be filed in limine.8 The real difference between theexception of no right of action and that of want of capacity isthat the fitfier challenges the plaintiff's ownership of of in-tefiest in the claim sued on, while the exception of wafnt ofcapacity dhalienges the authority of the plaintiff to institute andpr6secuxte the stilt regardless of whether the plaintiff owns orhas an interest in the claim sued on.9 An exception of want ofcApacity is raised when the plaintiff is alleged to be undef somedisability, such as minority or interdiction, which prevents himfro6i suing Unassisted; or, where suit is brought through a rep-resentative who is alleged to have no authority to represent theplaintiff, as in the case of a tutor who has not been properlyappointed or confirmed.10 While there has been some confusionih distinguishing between the exception of no right of actionand the exception of want of capacity the line of distinction nowseeiiis reasonably cleat.In the instant case, the rulliig of the court 5h the exceptionis in c6nsohance with the prior jurisprudence on the subject.Under this well-established line of authority, it has been heldthat the eXception of no right of action, and not the exceptionof want of capacity, is- the proper Vehicle for challenging anaction brought by a married woman, in her own name, involvingproperty which could be found to be community property.1 How-6. Termini v. McCormick, 208 La. 221, 23 So.2d 52 (1945) ; Tichenor v. Dr.G. H. Tichedor Antiseptic Co., 180 La. 119, 156 So. 194 (1934) ; Succession ofBreaux, 168 La. 712, 123 So. 300 (1929).7. Riche v. Ascension Parish Sch6ol Board, 200 So. 681 (La. App. 1941)McMahon, Parties Litigant in Louisiana, 11 Tut. L. REV. 527, 548 (1937).8. LA. CODE OF PRACTICE ait. 333 (1870), as amended, La. Acts 1936, No.124, p. 386; Cartwright v. Phissigur, 125 La. 700, 51 So. 692 (1910); Wisemanv. Begnaud, 35 So.2d 836 (La. App. 1948) ; Central Surety & Ins. Corp. v. Cahul-lette Shiibuilding Co., 195 So. 114 (La. App. 1940).9. Riche v. Ascension Parish School Board, 200 So. 681 (La. App. 1941).10. McVay v. New Orleans Public Service, 148 So. 67 (La. App. 1933)Campbell v. New Orleans City R.R., 104 La. 183; 186, 28 So. 985, 986 (1900)Reynolds v. Reynolds, 12 La. 617, 618 (1838) ; Harper i. Destiehan, 2 Mart.(N.S.) 389 (La; 1824) ; Riche v. Ascension Parish School Bodidi 200 So. 081(La. App. 1941).11; SUccesgion of Howell, 177 La. 276; 148 So. 48 (1933) ; Casente v. Lloyd,68 So;2d 329 (La. App. 1953) ; Hanid v. Coker, 11 So.2d 272; 274 (La. Abp.1942).(Vol. XVIINOTESever, the court of appeal, on rehearing, was of the opinion thatthe exception of no right of action and no cause of action filed bythe defendant was "more properly an exception of want of ca-pacity to sue.' 1 2 The Supreme Court, in overturning the courtof appeal's ruling on the exception, properly regarded the excep-tion as one of no right of action. 1. The real question was notthe plaintiff's capacity to sue but was, in fact, whether she had ajusticiable interest in the property in question.. Plaintiff wassuing to have property acquired during marriage declared herseparate property. There was no allegation that she was suingfor the community, or as agent for her husband as head andmaster of the community, nor was there any issue as to herindividual capacity to sue. Therefore, the exception was directedtoward the question of whether she had an interest in havingthis property adjudicated to herself. This situation is not to beconfused with the case where a wife purports, as agent for thecommunity, to sue on a compiunity cause of action. In such acase, the proper exception might well be one of want of ca-pacity.14 Pretermitting that question, however, the proper ex.ception for challenging plaintiff's interest in the property anddetermining, whether it was in fact separate or community prop-erty appears to be that of no right of action. If plaintiff, ontrial of the exception, can adduce sufficient evidence to establishthe property as part of her paraphernal effects, then the e xcep,-tion should be overruled; if not, it should be sustained.Richard F. KnightLOUISIANA PRATICE-E - RES JUDICATA -. M ATT.RkSWHICH MIGHT HAVE BEEN PLEADEDPlaintiffs sued to have a probated olographic will declared anullity. The controversy had. been before the court on two prioroccasions. In the first suit the will was attacked on the grQundthat the imposition of one numeral over another made the dateuncertain, but it was held that the date was adequate. A second12. Steens 7. Johnson, 81 So.2d 469 (La. App. 1955). While the opi.ni.on ofthe court of appeal is not entirely clear, the court seemed to indicate that, evenaccepting defendant's contention that the exception was one of no right of action,it was not well founded because the record furnished evidence to rebut the pre-uqmption that the property involved was community property.13. See note 11 supra.14. For a discussion of this point, see MC AHoN, LqulsrANA PR4qTiCE 30-31(Supp. 1956).19571

Louisiana Practice - Exceptions of Want of Capacity and No Right of Action Distinguished

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Louisiana Practice - Exceptions of Want of Capacity and No Right of Action Distinguished

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