Opinion
No. 29078.
On Motion to Remand, April 9, 1928. On the Rule, January 2, 1929. On the Merits, November 4, 1929.
Appeal from Fifteenth Judicial District Court, Parish of Acadia; W.W. Bailey, Judge.
Suit by Jules Clement, Sr., Marie Anais Doucet, and another against the Gulf Refining Company of Louisiana and others. A motion of the named plaintiffs to withdraw from the suit and for dismissal of their demands was granted, and Lindsey H. Dunn, as coplaintiff, appeals and moves for a remand of the case. Motion to remand denied, and judgment of dismissal as to the plaintiffs withdrawing affirmed.
Liskow Irion, of Lake Charles, for appellant.
John B. Fournet, of Jennings (Gus A. Llambais, of New Orleans, and Chappuis Chappuis, of Crowley, of counsel), for appellee Jules Clement, Sr.
On Motion to Remand.
Jules Clement, Sr., his wife, Marie Anais Doucet, and Lindsey H. Dunn instituted an action against the Gulf Refining Company of Louisiana and four other defendants to annul a mineral lease executed on May 8, 1901, between Clement and his wife and the author in title of the five defendants. Prior to the appearance of any of the defendants, Clement and his wife filed a motion to withdraw from the suit and for the dismissal of their demands. The motion was opposed by Dunn, the coplaintiff of the movers, who asked that it be denied and stricken from the record. After a hearing between the parties, the court below dismissed the opposition, approved the withdrawal, and ordered that, as to Clement and his wife, the suit be dismissed. This ruling was appealed from by the opponent Dunn. The transcript of appeal was lodged in this court on January 7, 1928, and on February 17, 1928, appellant filed a motion to remand the case for the introduction of testimony bearing upon certain alleged fraudulent acts practiced upon appellant and upon appellees, whereby the latter were induced to withdraw from the suit. On March 12, 1928, Mr. and Mrs. Clement filed an answer to the motion to remand, in which they specifically deny the alleged fraudulent acts or that any fraud was practiced upon them or upon appellant, and aver that, from the time of making their motion to withdraw, and for some time prior thereto, it has been their constant and consistent desire to withdraw and discontinue the suit; wherefore they pray that the motion to remand be rejected.
We think the application of the appellant must be denied. The question to be determined in due course upon this appeal is whether the appellees Clement and his wife have the right to withdraw from the suit which they instituted jointly with the appellant. If they have that right, the causes by which they are induced to exercise it are unimportant. Whatever one has a legal right to do, he may do it with impunity, regardless of motive. 1 R.C.L. 319; Jones v. Jones, 119 La. 677, 44 So. 429. On the other hand, if they do not have that right, their motives for attempting to exercise it are immaterial, since they cannot be urged in defense of their illegal act.
For the reasons assigned, the motion of Lindsey H. Dunn, appellant, to remand the case, is denied, at his cost.
On the Rule.
The order this day entered in the case of Jules Clement, Sr., v. Lindsey H. Dunn, No. 29544 [see 168 La. 394, 122 So. 122], disposes of the rule filed in this case, and, for the reasons stated in the case of Clement v. Dunn, it is ordered that the rule herein issued be perpetuated and that the case of Jules Clement, Sr., v. Lindsey H. Dunn, No. 29544, be fixed for argument and that it be heard and disposed of by preference and before this case is fixed for argument.
On the Merits.
The plaintiffs Jules Clement, Sr., Marie Anais Doucet, his wife, and Lindsey H. Dunn have instituted this suit to annul an oil lease granted in 1901 by Jules Clement, Sr., to S.A. Spencer Co., the author in title of the five defendants to this suit.
Jules Clement and his wife withdrew from the suit, before the appearance of any of the defendants, and moved that their demands be dismissed on the ground that the suit is not well founded in law and in fact.
Their coplaintiff, Dunn, opposed this withdrawal and dismissal on the ground that, in bringing the suit, he had acted under a power of attorney from Jules Clement; that he had employed a law firm to sue for the cancellation of the lease; and "that it would be detrimental and of great damage to your appearer for said Jules Clement and his wife to withdraw from said suit after appearer has legally and lawfully acted under the power of attorney referred to; and the said Jules Clement and his wife have no right, regardless of such detriment and damage, to withdraw as co-plaintiffs from this cause without the consent of your appearer, which he has not given and does not give."
From the order of the lower court, dismissing the suit as to Clement and his wife, Dunn has taken this appeal.
It is provided in article 491 of the Code of Practice that "the plaintiff may, in every stage of the suit previous to judgment being rendered, discontinue the suit on paying the costs."
Regardless of the power of attorney given to Dunn by Jules Clement, Clement and his wife are owners of a three-fourths interest in the mineral rights involved in the case, and we see no good reason why they, as co-owners with Dunn, may not have the suit dismissed as to themselves and their interest, which is not affected by the power of attorney in the case.
We are not called upon, in this particular proceeding, to determine the rights of Dunn, the plaintiff remaining in the suit, who is co-owner of one-fourth interest in the lease in question.
In the lower court, defendants have tendered exceptions of no right or cause of action to the petition of plaintiffs, and these exceptions have not yet been disposed of by the trial judge.
The sole issue upon which we pass in this case is as to the right of the coplaintiffs, Clement and his wife, to dismiss the suit as to themselves. All rights of action which Dunn may have in the case, either individually as co-owner, or under the power of attorney from Clement, are fully reserved for future adjudication.
Judgment affirmed.