Moss v. Drost

¶1Plaintiffs complain of a boundary line as fixed heretofore in another suit The differences have arisen owing, they allege, to an erroneous survey made in accordance with an order of the court in proceedings in a suit to which they specially refer in their petition, and in which the judgment is assailed. Plaintiffs represent that the judgment, the legality of which they question, was obtained by ill practice and fraud, and that in consequence the boundary line is not correct. They aver that a new survey should be ordered to establish the true boundary.

¶2*287The defendants were defendants in the former suit in which the judgment in question was rendered.

¶3Defendants take issue with plaintiffs, and urge that plaintiffs have no cause of action, and that, furthermore, all the parties to the judgment plaintiffs seek to have annulled are not parties to this present suit; that the tracts of land, the dividing line of which plaintiff seeks to have changed and re-established, are not adjacent one to the other.

¶4John A. Moss, one of the defendants, filed a plea of vagueness, and further averred that he was without interest in this litigation, and asked that the suit be dismissed as to him.

¶5The court sustained the plea of no cause of action, and dismissed the suit.

¶6Have plaintiffs good ground to have the suit dismissed? The answer is, it is not within the terms of the Code of Practice, art. 607.

¶7[1] As to plaintiffs’ allegation that the judgment was obtained by fraud and ill practice, the boundary was settled in a former suit. It cannot be assailed successfully, unless it be alleged in what respect there was fraud and ill practice. The presumption is that the judgment was regularly obtained. To overcome that presumption, the particular acts of fraud and ill practice, should have been alleged.

¶8[2] Another fatal objection is plaintiffs allege that the defendant Drost was not and is not the owner of the adjacent land. If that be true, it would be extremely difficult, if not impossible, to establish boundary lines between two tracts of land, if they are not adjacent. It occurs to us that the defense that they were not adjacent should have been alleged, if it had any merit, it has not in the first suit. But, in any event, whether alleged in the first suit or in this suit, it does not appeari that it is possible to fix the boundary line between two bodies of land that are not adjacent to each other.

¶9[3,4] Another objection which plaintiffs have failed to meet is that they have not alleged that they discovered that the two tracts were not adjacent to each other since the former suit was instituted. Plaintiffs have not been sufficiently diligent to enable them to maintain this action. Want of due diligence is fatal to the right to reopen issues settled by a judgment. This principle was laid down in each of the following decisions: Norris v. Fristoe, Administrator, 3 La. Ann. 640; Lanfear v. Mestier, 18 La. Ann. 497, 89 Am. Dec. 058; Perry v. Rue, 31 La. Ann. 288.

¶10They might have presented all their grounds of defense in the former suit. If there was any cause preventing them from presenting a complete defense in the former suit, it is not here alleged.

¶11The district court correctly maintained the plea of no cause of action.

¶12It is therefore ordered, adjudged, and decreed that the judgment is affirmed.