
    (115 So. 796)
    No. 28646.
    CASTELLUCCIO et al. v. CLOVERLAND DAIRY PRODUCTS CO., Inc. In re CASTELLUCCIO et al.
    Oct. 31, 1927.
    Rehearing Denied Feb. 13, 1928.
    
      (Syllabus by Editorial Staff.)
    
    1. Abatement and revival <&wkey;58(l) — Personal Injury action does not survive death of beneficiary (Code Prac. art. 21).
    Action for recovery of damages for personal injuries sustained is purely personal, and does not survive death of beneficiary, notwithstanding that Code Prac. art. 21, states general rule to be that actions do not abate by death of one of parties after answer filed.
    2. Abatement and revival <&wkey;68 — Where beneficiary after recovering judgment in personal injury action dies pending appeal, his heirs inherit judgment; “action” (Civ. Code, art. 2315, as amended by Act No. 159 of 1918; Civ. Code, arts. 940, 945; Code Prac. arts. 548, 564).
    .Where beneficiary recovers judgment in personal injury action, such judgment is not, under Civ. Code, art. 2315, as amended by Act No. 159 of 1918, abated by his death during pendency of appeal, but his heirs, under Civ. Code, arts. 940, 945, inherit judgment, which under Code Prac. art. 548, becomes property of him in whose favor it is given, since suspensive appeal is not “action” under article 564, so that no action remained to lapse on appeal.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Action-Action at Law.]
    3. Abatement and revival <&wkey;68 — Judgments ¿o not fall by death of those in whose favor they are rendered.
    Judgments do not fall by death of those in whose favor they have been rendered.
    4. Judgment <&wkey;217 — Judgment for beneficiary in personal injury action held “definitive or final judgment,” which could be seized, sold, or inherited, subject to right of correction on appeal (Code Prac. arts. 539, 575, 578).
    Judgment for beneficiary in personal injury action held definitive dr final judgment, within Code Prac. art. 539, which could be executed if devolutive appeal only was taken, and could not be set aside even by suspensive appeal under arts. 575, 578, and which could be seized, sold, or inherited subject to right of correction, if erroneous, on appeal.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]
    5. Judgment <&wkey;294 — Where beneficiary obtain* ed judgment in personal injury action, court cannot alter it except through action of nullity or review (Code Prac. arts. 548, 604).
    Where beneficiary obtained judgment in personal injury action, he or his lawful heirs cannot be deprived of such judgment except by allowing it to become prescribed, by action of nullity, or by action of reviewing court in amending, reversing, or setting it aside, since trial judge is powerless to alter such judgment after it is signed except through action of nullity under Code Prac. arts. 548, 604.
    O’Niell, C. J., dissenting.
    Action by Salvador Castelluecio and another' against the Oloverland Dairy Products Company, Incorporated, in which named plaintiff died during the pendency of a suspensive appeal to the Court of Appeal for the Parish of Orleans. Judgment for plaintiffs was affirmed in part by the Court of Appeal, and Peter Castelluecio and others, sole heirs of named plaintiff, apply for certiorari or writ of review.
    Judgment of Court of Appeal affirmed in part and reversed in part, and cause remanded, with directions.
    Scott E. Beer, of New Orleans, for applicants.
    J. C. Henriques and Frank T. Doyle, both of New Orleans, for respondent.
   LAND, J.

In January, 1924, Lucy Fratello, the wife of Salvador Castelluecio, and the mother of Lucia Castelluecio, a minor, was killed in the city of New Orleans by being struck by an iron post, which fell across a sidewalk. This post supported a gallery, and ■was knocked down by a truck pf defendant company while driven by one of its employees.

Salvador Castelluecio, the surviving husband, instituted suit against defendant company for himself and his minor daughter in the civil district court for the parish of Orleans, and obtained judgment in the sum of $5,000, or $2,500 each, as damages for injuries resulting in the death of Lucy Fratello.

After motion for new trial was refused in the lower court, and judgment signed, defendant company prosecuted a suspensive appeal to the Court of Appeal for the parish of Orleans. During the pendency of the appeal, Salvador Castelluecio died, and his sole heirs, the applicants for the writ in this case, were sent into possession of his estate, and were made parties plaintiff and appellee, and filed an answer in the Court of Appeal 'praying for an increase of the judgment of the lower court.

On the day the case was argued in the Court of Appeal, counsel for defendant company filed a plea that the judgment in favor of Salvador Castelluecio for $2,500, which had been awarded him personally, had abated by his death, and that the right of Lucia Castelluecio, the minor, to her claim for damages, was the sole right that remained in the case.

The Court of Appeal affirmed the judgment of the lower court in favor of the minor for $2,500, but held that, by the death of Castelluccio during the pendency of the suspensive appeal from the judgment in his favor, his right perished, and - that his major heirs could not be made plaintiffs in the cause, citing article 2315 of the Civil Code, as amended by Act 159 of 1918.

The question of law presented for review in this case is whether, upon the death of a beneficiary, under article 2315 of the Civil Code, during the pendency of an appeal, his heirs inherit the judgment rendered and signed in favor of the beneficiary in the lower court, or whether such judgment is abated by his death.

Under the well-settled jurisprudence of this court, an action for the recovery of damages for personal injuries sustained is a purely personal one, and does not survive the death of the beneficiary, notwithstanding the Code of Practice states the general rule to be that: “Actions do not abate by the death of one of the parties, after answer filed.” C. P. art. 21; Chivers v. Roger, 50 La. Ann. 62, 63, 23 So. 100.

• In the,Chivers Case, plaintiff sued to recover damages for the death of his son. The case was tried and submitted, with the understanding that the decision might be rendered at the next term of court. The plaintiff died before judgment was rendered on the merits, and his heirs were duly cited and made parties plaintiff to the suit. In this attitude of the case, the trial judge refused to pass upon the merits, but dismissed the suit on the ground that, plaintiff having died, his right ■ of action for the damages claimed did not survive him and continue in his heirs.

» The judgment of the lower court was affirmed on appeal. In the course of the opinion, it became necessary to differentiate or overrule the case of Vincent v. Sharp, 9 La. Ann. 463, which was cited by plaintiffs as authority supporting their right of action as heirs of the beneficiary.

In reviewing the Vincent Case, the court said:

“It is true that our predecessors held in Vincent v. Sharp, 9 La. Ann. 463, that a personal action for damages resulting from an assault and battery does not expire with the person who instituted it. But that case was tried and decided in the district court and a verdict of the jury rendered in favor of the plaintiffs, and from that judgment an appeal has been prosecuted. The plaintiff and appellee having died during the pendency of the appeal, counsel for the defendant and appellant insisted that the heirs of the deceased had no standing in court to prosecute the appeal, because the right of action lapsed at the death of the plaintiff and appellee. [Italics ours.]
“On casual inspection that decision would seem to favor the plaintiff’s theory, but bn reflection it does not.
“That case was circumstanced differently from the instant one, in that it had ceased to be an action and had become merged into a judgment, and this court has decided that an appeal was not an action. [Italics ours.]
“In Beard v. Russ [34 La. Ann. 315] supra, our predecessors said that: ‘It is clear that an appeal is a mere incident to an action, and not at all the same thing. The judgment is the result or the consequence of the action, and the appeal is the mode of seeking to have the judgment of the inferior court corrected by the appellate tribunal.’
“A judgment is the property of him in whose favor it is rendered, therefore it may well be that a judgment would pass, at the death of one in whose favor it is rendered, to his heirs when an action pending would not, because the right of action had lapsed on account of his demise.” 50 La. Ann. 63 (23 So. 103).

We know of no law of- this state that provides for the caducity of judgments, when once rendered and signed in an inferior court. On the contrary, it is expressly provided in article 548 of the Code of Practice that:

“A judgment, when once rendered, becomes the property of him in whose favor it has been given; and the judge cannot alter the same, except in the mode provided by law.” (Italics ours.)

The present applicants for the writ of review are the children and forced heirs of Salvador Castelluccio, deceased, in whose favor the judgment of the lower court was rendered.

This judgment, being property, necessarily formed a part of the estate transmitted by the deceased to his heirs, and was acquired by them immediately after his death. R. C. C. art. 940. "And decedent’s heirs also succeeded necessarily to all of his rights as to proceedings necessary to protect their right of property in said judgment. As forced heirs, they represent the deceased in everything, and are “of full right in his place as well for his rights as his obligations.” R. C. C. art. 945.

The suspensive appeal was not a continua- ■ tion of the original action instituted by Salvador Gastelluccio in his own behalf against 'defendant company. It was not an action at all, but, as defined by the Code of Practice:

“An appeal is the act by which one of the parties to a suit has recourse to a superior tribunal, in order to have the judgment of an inferior court corrected.” C. P. 564. (Italics ours.)

Appeals are not granted from actions, but from final judgments into which the action has been merged. It is clear, therefore, that no action remained to lapse on appeal, ■after final judgment had been rendered in the lower court in favor of decedent. Under our law, judgments do not fall by the death of those in whose favor they have been rendered.

It must be considered that there are final judgments of inferior courts, as well as final judgments of appellate courts. “Definitive or final judgments are such as decide all the points in controversy between the parties”’ C. P. art. 539.

The judgment rendered in the lower court in favor of Salvador Castelluceio was a definitive or final judgment, not in the sense, it is true, that it was indefeasible as against the right of appeal, .but it was such a judgment as could have been executed if a devolutive appeal only had been taken. It was such a judgment as could not be set aside by even a suspensive appeal, the only effect of which, in the present case, was to stay execution of the judgment. O. P. arts. 575 and 578.

It was such a judgment as could have been seized, sold, or inherited, subject to the right of correction, if erroneous, on appeal. It was not a mere action in posse, or a demand unliquidated and undetermined. The claim of decedent had received the stamp of judicial sanction; it had become crystallized into an enforceable legal right, and had passed beyond the stage of a mere untried right of aetion into the status of a property right duly adjudicated.

The Code of Practice has clearly distinguished the adjudged rights of a litigant from a mere pending action.

The trial judge was powerless to alter this judgment, after it was signed, except through an action of nullity. C. P. arts. 548, 604.

When jurisdiction became vested in the Court of Appeal for the parish of Orleans, that court was competent to have amended or reversed the judgment, or it might have set it aside and remanded the case for a trial de novo, if the interests of justice required it. But we know of no other method, under the law of this state, by which decedent, or his lawful heirs, could have been deprived of the judgment rendered in his favor in the court below, unless it be by allowing it to become prescribed. Such are the property rights of decedent and his heirs in the judgment in question in this case.

Neither Vincent v. Sharp nor Chivers v. Roger has been overruled. We have been furnished with no decision of this court which holds that, after the action of the beneficiary for damages under article 2315 of the Oivil Code has been merged into a judgment, such judgment lapses by the death of the beneficiary during the pendency of a suspensive appeal. The decision in the Chivers Case is sound and logical in our opinion. It is based upon judicial precedent, and upon the textual provisions of our Code of Practice. It is therefore approved as correctly stating the law applicable to the case at bar.

Article 548 of the Code of Practice, declaring “that a judgment, when once rendered, becomes the property of him in whose favor it has been given,” cannot be read out of the Code nor made nugatory by an attempt to reduce a judgment, or the thing adjudged to the level of a mere undetermined right of action for damages for personal injuries, which may well lapse, under article 2315 of the Civil Code, at the demise of the beneficiary in whose favor it exists.

It is therefore ordered that the judgment of the Court of Appeal for the parish of Orleans rendered in this case be set aside and reversed, in so far as it holds that the judgment of the civil district court for the parish of Orleans in favor of Salvador Castelluccio abated by his death during the pendency of the suspensive appeal, and in so far as it denies the right of the heirs of decedent to' be made parties plaintiff and appellee to the proceedings in that court.

It is now ordered that the judgment of the Court of Appeal for the parish of Orleans be affirmed in so far as it maintains that part of the judgment of the civil district court in favor of the minor, Lucia Castelluccio.

It is further ordered that this case be remanded to the Court of Appeal for the parish of Orleans for the purpose of making the heirs of Salvador Castelluccio parties plaintiff and appellee to the proceedings in that court, and that, after making said heirs parties, the case as to the judgment in favor of Salvador Castelluccio be proceeded with and be decided in due course.

It is further ordered that the costs of this application for writ of review be paid by defendant company, Cloverland Dairy Products Company, Inc.

O’NIELL, C. J.

(dissenting). It seems to be conceded in the majority opinion, for it could hardly be disputed, that the articles 21 and 361 of the Code of Practice, which declare that án action is not abated by the death of one of the parties after an answer to the suit has been filed, are not applicable to an action founded upon a nonheritable' right of action or to an action founded upon a nonheritable obligation. Article 21 merely declares: “Actions do not abate by the death of one of the parties, after answer filed.” That means simply that, in cases where the right of action is transmissible by the law of inheritance, the heirs of the plaintiff are not required to commence the action anew if he dies after the defendant’s answer is filed, and that, in cases where' the obligation sued on is transmissible by the law of inheritance, the plaintiff is not required to commence the . action anew against the heirs of the defendant if he dies after his answer is filed. Article 361 of the Code of Practice gives the explanation, viz.:

“If after issue joined either the plaintiff or defendant die, it is not necessary to recommence the action; it continues between the surviving party and the heirs of the one deceased, pursuant to the provisions enacted in the first part of .this Code.”

The most pertinent of the “provisions enacted in the first part of this Code” are in article 113, which declares that, if the right of action is transmissible by inheritance, and the plaintiff dies, the right of action passes to his heirs, but that each heir can claim only his proportionate share of the right, just as each heir is bound only for his proportionate or virile share of the debts of the deceased.

Article 943 of the Civil Code explains, beyond all doubt, that the articles of the Code of Practice on the subject of abatement of actions do not mean that a nonheritable right of action or a nonheritable obligation is converted into a heritable right of action, or a heritable obligation, as the case may be, by the filing of an answer to the suit on such right of action, or obligation. The article declares:

“Thus the extent of the rights of the deceased regulates those of the heir, who succeeds to all his rights which can be transmitted, that is, to all those which are not, like usufruct, attached to the person of the deceased.” (The italics are mine.)

In Gerling v. Baltimore & Ohio Railroad Co., 151 U. S. 673, 14 S. Ct. 533, 38 L. Ed. 311, which was an action for damages for personal injuries, the court had occasion to construe certain articles of the Code of West Virginia, similar to articles 21 and 361 of our Code of Practice, and the court said:

“The personal representatives of a deceased party to a suit cannot prosecute or defend the suit after his death, unless the cause of action, on account of which the suit was brought, is one that survives by law.
“In West Virginia, no action for personal injury can be maintained by the executor or administrator of the person to whom the wrong was done, except for a wrongful act, neglect or default causing death.
“Where in an action for personal injuries the judgment was against the plaintiff, and he has died since the action was brought to this court by writ of error, the writ of error will be dismissed.”

In the course of the opinion in the case quoted, the court said:

“In an action for personal injury, a similar decision was made in England under the Common Law Procedure Act of 1852, Stat. 15 & 16 Vict. c. 76, which provided, in section 135, that ‘the death of a plaintiff or defendant shall not cause the action to abate, but it may be continued as hereinafter mentioned.’ * * * It was argued for the plaintiff that section 135, which was not restricted to actions the' cause of which survived, was quite large enough in its terms to include the cash. But the court held that the section was not intended to give any new right of action, but only to prevent the proceedings abating by the death of the plaintiff, and to permit the personal representative to continue them, when he could have brought an action; Mr. Justice Crompton saying, ‘It would be a strange thing to hold that these sections which relate merely to matters of procedure, had the effect of doing away with the ancient common law rule — actio personalis moritur cum persona.’ Flinn v. Perkins, 32 L. J. Q. B. 10, 11; 8 Jur. N. S. 1177.
“That case does not appear to have ever been overruled or questioned, although it was cited by counsel in Kramer v. Waymark, L. R. 1 Exch. 241, 4 Hurlst. & C. 427; and again in Hemming v. Batchelor, L. R. 10 Exch. 54, 44 L. J. Exch. 54. * * *
“In Green v. Watkins, 19 U. S. (6 Wheat.) 260, 262 (5 L. Ed. 256) it was said by Mr. Justice Story, following Tidd’s Practice, 1096, that a writ of error in a personal action would not abate if the plaintiff in error died after assignment of errors. But the case before the court was a real action, in which, as he observed, the right descended to the heir. And there is nothing in Tidd’s Practice, or in the authorities there cited, which countenances the theory that a writ of error in action, the cause of which would not survive, either to heirs or to personal representatives, would not be abated by the death of the only person who could maintain the action.”

The ruling in Chivers v. Roger, 50 La. Ann. 57, 23 So. 100, was that an action for damages for personal injuries, being strictly personal and not transmissible by inheritance except to the extent allowed by the amendments of article 2315 of the Civil Code, was, except to that extent, abated by the death of the plaintiff at any stage of the action. That decision is applicable to an action pending on appeal, as well as to an action pending in the court of original jurisdiction.

In the case of Kerner v. Trans-Mississippi Terminal Railroad' Co., 158 La. 857, 104 So. 741, we said:

“A right of action for damages for personal injuries is not inheritable under the common law, and was not under the civil law. Unless a statute declares that such right of action shall survive in case of the death of the person'injured, it is abated by his death, whether he dies as a result of the injury or from some other cause, and whether he has or has not instituted a suit to recover the damages suffered. Hubgh v. N. O. & C. R. Co., 6 La. Ann. 498, 54 Am. Dec. 565; Walton v. Booth, 34 La. Ann. 913; Chivers v. Rogers, 50 La. Ann. 57, 23 So. 100; Huberwald v. Orleans R. Co., 50 La. Ann. 477, 23 So. 474.
“There is no right of action at common law, and there was none under the Roman or the Spanish law, for damages, caused by the wrongful or negligent killing of a human being, for the loss of his support, or for mental suffering inflicted upon any one surviving him, by his death. Hermann v. N. O. & C. R. Co., 11 La. Ann. 5; Earhart v. N. O. & C. R. Co., 17 La. Ann. 243; McCubbin v. Hastings, 27 La. Ann. 713; Vredenburg v. Behan, 33 La. Ann. 627; Van Amburg v. V., S. & P. Ry. Co., 37 La. Ann. 650, 55 Am. Rep. 517; Delisle v. Bourriague, 105 La. 77, 29 So. 731, 54 L. R. A. 420. Therefore a statute that gives the right of action to survivors of the person injured, in case of his death, must be construed strictly, and not extended to any other survivors than those who were surely intended to be included and are in fact mentioned in the statute; and the rule applies as well to the right of action which the deceased person had for the injuries suffered by him as to the right of action for the damages suffered by the survivors mentioned in the statute. Walker v. V., S. & P. Ry. Co., 110 La. 718, 34 So. 749; Payne v. Georgetown Lumber Co., 117 La. 983, 42 So. 475; Lynch v. Knoop, 118 La. 611, 43 So. 252, 8 L. R. A. (N. S.) 480, 118 Am. St. Rep. 391, 10 Ann. Cas. 807; Landry v. American Creosote Works, 119 La. 231, 43 So. 1016, 11 L. R. A. (N. S.) 387; Vaughan v. Dalton-Lard Lumber Co., 119 La. 61, 43 So. 926; Flash v. La. W. R. Co., 137 La. 352, 68 So. 636, L. R. A. 1916E, 112; Gerling v. Baltimore & O. R. Co., 151 U. S. 673, 14 S. Ct. [533] 503, 38 L. Ed. 311.
“The Court of Appeal, in this ease, has construed article 2315, Civil Code, as amended by Act 159 of 1918, to mean that, if the survivor who acquires the right of action at the death of the person injured dies within the year after the death of the person injured, the right of action inures to the survivor or survivors next in rank, in the order in which they are named in the statute. That is not in accord with the language of the statute, or a necessary implication, and is contrary to the general rule that such a right of action is abated by the - death of a person having the right.”

The decision in Vincent v. Sharp, 9 La. Ann. 463, was that an action for damages for tort, the cause of action in that case being assault and battery, was not abated by the death of the plaintiff, but might be continued by the curator of his estate. The decision was not based upon the fact that a judgment had been rendered in favor of the plaintiff in the trial court, or that the case was pending on appeal when the plaintiff died; it was based upon the articles of the Code of Practice on the subject of abatement of actions. The decision was not founded upon any reasoning or authority whatever. All that the court said on the question whether the action had abated was this:

“Since the appeal, the plaintiff has died; and the curator of his estate has been made party. It is insisted, by the counsel of appellant, that a personal action for damages for a tort, expires with the person who instituted it. We are not aware of any such rule in our jurisprudence.”

Such a rule, however, had been established in Hubgh v. New Orleans & Carrollton Railroad Co., 6 La. Ann. 498, 54 Am. Dee. 565, and it is now well settled by the 17 decisions cited in Kerner v. Trans-Mississippi Terminal Railroad Co., supra, and by that decision, that an action for damages for personal injuries is abated by the death of the person having such right of action, except to the extent to which article 2315 of the Civil Code, as amended from time to time, declares that the right of action shall survive. The decision in Vincent v. Sharpe, therefore, has been overruled many times, by implication, and it ought to be declared overruled. It was referred to in Edwards v. Ricks, 30 La. Ann. 926, and in Payne v. Georgetown Lumber Co., 117 La. 983, 42 So. 475, but it was not appropriate to either of those cases, and cannot be said to have been affirmed or approved.

In other" jurisdictions a suit founded upon a right of action that is not heritable is abated by the death of the plaintiff after judgment has been rendered and while the ease is pending on appeal. In 1 C. .1. 167, it is said that “where the cause of action survives,” an action is not abated by the death of the plaintiff after judgment is rendered in the court of original jurisdiction and while the case is pending on appeal; and then it is said:

“But where the cause of action is one which does not survive, the action abates as if the death had occurred before verdict, or interlocutory judgment or decision, unless, as in some states, it is saved by statute.”

It is said in the majority opinion that there has been no decision of this court holding that, after a survivor, having the right of action under article 2315 of the Civil Code, as amended, has obtained a judgment for damages in the district court, his right of action lapses and is not transmitted to his heirs at law if he dies during the pendency of a suspensive appeal. This court has decided, however, that a nonheritable right of action is not converted into a heritable right by being merged into a judgment, but lapses if the party having such right dies before executing or recovering on the judgment. In the Succession of Tugwell, 43 La. Ann. 879, 9 So. 499, the widow sued and obtained judgment against the administrator of her husband’s succession for the $1,000 which she was entitled to as widow in necessitous circumstances, but she died before collecting on the judgment; and her major daughters, being her heirs at law, claimed that they had inherited the judgment. This court rejected their demand, saying:

“They also earnestly argue that the widow’s claim, having been put in judgment, became unalterable and vested in her as completely as if the amount had already been paid. * * * A judgment does not create any right. It decrees its existence and makes it executory and secures a method to enforce payment. If the right of inheritance existed at all, it ivas not affected in any respect by the judgment. The major heirs cannot recover this amount by representation of their mother’s succession. This we have seen is no longer an open question.”

It is not necessary to go that far in this case, because, when the plaintiff in this case died, he had not a final judgment. His action was pending in the Court of Appeal, a court having jurisdiction over questions of fact as well as of law, and having the same authority to reject his demand as the trial court had before rendering the judgment. >

In Cassard v. Tracy, 52 La. Ann. 835, 27 So. 368, 49 L. R. A. 272, this court said, on the first hearing of the case:

“Judgments of trial courts, by the law of this state, when once rendered and made final, as far as they can be so made by the action of such courts, become the property of those in whose favor they are given.”

But on rehearing, the court reversed its former ruling, and said (page 855 [27 So. 376]):

"The judgments which plaintiffs had recovered in the trial court were not final judgments. No vested rights had yet accrued. No indefeasible title in anything had passed.”

That doctrine was affirmed in Bloomfield v. Thompson, 134 La. 923, 64 So. 853.

I do not see how the ruling in this case can be reconciled with the decisions heretofore rendered on the subject of litigious rights. Article 2447 of the Civil Code forbids attorneys at law and officers of the courts to buy litigious rights under the jurisdiction of any court in which the attorneys practice or the officers exercise their functions, under penalty of nullity and of having to pay all costs, damages, and interest. Article 2652 declares that one against whom a litigious right has been transferred may become released from the obligation by paying to the transferee the price which he paid for the litigious right, with interest from the date of the transfer. Article 2653 says that a right is said to be litigious when there is a suit and contestation over it. It is well settled — and could not reasonably be disputed— that a litigious right does not lose its litigious character when the 'contest is decided in the court of original jurisdiction and is pending in the appellate court. In fact, it has been decided that a litigious right continues to be such if the judgment recognizing the right is in contest in an action to annul it. Buck & Beauchamp v. Blair & Buck, 36 La. Ann. 16.

It seems anomalous to say that a right of action which is strictly personal and non-heritable is transmitted to the heirs of the plaintiff if he dies after having obtained a judgment or verdict from the trial judge or jury and while the case is pending on appeal. A verdict or judgment which has been appealed from, especially when the appeal is pending in a court having jurisdiction over the facts as well as the law of the case, is not at all decisive of the rights of the appellee. I believe that a reference to the statistics would show that, in Louisiana, where the appellate courts have jurisdiction over questions of fact as well as of law, the verdicts of juries in favor of the plaintiffs in suits for damages for personal injuries are reversed or reduced more often than they are affirmed by the appellate courts. Why, then, should the plaintiff’s claim, in a suit on a right of action which is strictly personal and nonheritable, be considered as finally or virtually settled by a verdict in his favor, any more than it is finally or virtually settled by a verdict against him?

The author of the majority opinion in this case attaches too much importance to the trite statement in article 548 of the Code of Practice that a judgment, when once rendered, becomes the property of him in whose favor it has been given, and that the judge cannot alter it except in the method provided by law. That is only declaratory of the fundamental proposition that after a judge has rendered a judgment he cannot reverse or amend it, to the prejudice of either of the parties, otherwise than by due process of law. The statement is as fundamental and as trite as to say that an unliquidated claim for damages belongs to him in whose favor the law grants the right of action, and the judge who has jurisdiction over the right of action cannot prevent its being exercised according to the method provided by law.

Article 548 of the Code of Practice projects a defendant in whose favor a judgment has been rendered rejecting the plaintiff’s demand as well as it protects a plaintiff in whose favor a judgment has been rendered, allowing all or any part of his demand.

In a very recent Louisiana case, Gulf Refining Co. v. United States, 269 U. S. 137, 46 S. Ct. 54, 70 L. Ed. 199, it was said:

“An appeal is not a new suit in the appellate court, but a continuation of the suit in the court below, or, as this court has recently said,' ‘A proceeding in the original cause and the suit is pending until the appeal is disposed of.’ Mackenzie v. A. Engelhard & Sons Co., 266 U. S. 131, 142, 143, 45 S. Ct. 68, 69 L. Ed. 205, 208, 209, 36 A. L. R. 416. It is but a step toward the final adjudication of the original cause which the law allows quite as much as it allows a defense in the first instance. We are of opinion that within the- principle of the Louisiana rule the defendants continued in possession in-moral good faith until the final adjudication upon appeal.”

In the decree which- the court has rendered in this ease, it is said, without any discussion of the merits of the case, that the judgment is affirmed in so far as it is in favor of the minor child, Lucia Casteliuccio. The judgment of the Court of Appeal in her favor was not subject to review, or reversal or affirmance, in this proceeding by writ of review, on the part of the heirs at law of Salvador Casteliuccio. The defendant, Clover-land Dairy Products Company, applied for a writ to review the judgment in favor of the minor child, Lucia Casteliuccio, and the application was denied by this court on the 23d day of May, 1927. See Salvador Castelluccio v. Cloverland Dairy Products Co., In re Cloverland Dairy Products Co., applying for review, etc., No. 28653 of, the docket of this court.

I respectfully dissent from the opinion and decree rendered in this case.  