
    (109 So. 289)
    No. 27744.
    L. A. BAUMAN et al. v. Mrs. Mary J. PENNYWELL et al.
    (June 28, 1926.)
    Appeal from First Judicial District Court, Parish of Caddo; E. P. Mills and T. F. Bell, Judges.
    Edward Barnett, of New Orleans, for appellants.
    Foster, Hall & Smith, of Shreveport, for appellees. '
   ST. PAUL, J.

This is an appeal taken in the same case which came lately before us on application for writs of certiorari, mandamus, and prohibition. See Bauman et al. v. Pennywell et al., No. 27686 of our docket, decided February 1, 1926 (160 La. 555, 107 So. 425).

This suit is (in effect) an action to set aside, on allegations of fraudulent simulation, a sale and mortgage of certain lands in ■Caddo parish, and to enjoin the sale of said lands by the sheriff of said parish; all as set forth in the opinion handed down in No. 27686 aforesaid, wherein the issues involved are fully stated.

These issues need not be repeated here. Suffice it to say, that the judgment below (rendered before our judgment in No. 276S6 aforesaid, to wit, on December 19, 1926), sustained the pleas of res judicata herein filed by these defendants, which pleas we held, in No. 27686 aforesaid, to be not well founded, as follows:

“We conclude, therefore, that the plea[s] of res adjudicata should have been overruled, as at the date of the rendition of the judgment in the partition suit by this court [Bauman et al. v. George et al., 154 La. 680, 98 So. 85], Mrs. L. S. Bauman, the mother of the defendants in said suit, was yet alive, and it was [therefore] not legally possible for [said] defendants to have asserted, at that time, against Mrs. Pennywell, [subrogated] plaintiff in said suit, the action to annul provided for in article 2239 of the Civil Code for the protection of their légitime as forced heirs.”

This ruling is determinative of the matter now before us.

Decree.

The judgment appealed from is therefore reversed, and the pleas of res judicata herein filed are overruled; and it is now ordered that this cause be remanded for further proceedings according to law.  