
    (84 South. 528)
    No. 23660.
    COLTRARO v. LOTUSO.
    (May 3, 1920.)
    
      (Syllabus by Editorial Siaf.)
    
    Trial <&wkey;5 — Order for trial, when no answer had been hied and issue joined, erroneous.
    Where no answer had been filed in a proceeding, and issue had not been joined, so that the suit w^s not ready for trial, ruling of trial court ordering case to be tried on a specified date was error.
    Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.
    Suit for separation from bed and board by Joseph Coltraro against Rosa Lotuso, his wife, wherein defendant filed petition to annul and set aside default judgment taken against her. Prom judgment for defendant in the main demand, and plaintiff in the suit to annul, plaintiff appeals.
    Reversed, and case remanded.
    K. V. Richard, of New Orleans, for appellant.
    Wm. H. Byrnes, Jr., of New Orleans, for appellee.
   SOMMERVILLE, J.

Joseph Ooltraro sued his wife for separation from bed and board, on the ground of abandonment, August 7, 1917. An exception of no cause of action was filed by defendant.

Before the exception was disposed of, a judgment by default appears to have been taken, and it was confirmed.

Thereupon Mrs. Ooltraro, the wife, filed a petition to annul ,and set aside the judgment taken against her as before set forth. The husband filed an exceirtion to that petition on the ground of no cause or right of action, and pleaded an estoppel. On April 15, 1919, the exception of Ooltraro and the plea of estoppel filed by him were overruled, and, in the judgment overruling same, the court proceeded to say:

“As answers have been filed in the suit to annul and in the suit for divorce, this case is now ordered to be tried on the 5th day of May, 1919, and all counsel must take notice.”

It wouid appear from the record that the judge was in error in saying that answers had been filed in the two suits. Exceptions only appear to have been filed therein.

On May 5, the case was continued to May 13, when it was called for trial, and counsel for Mr. Ooltraro objected to going to trial “at this time for the reason that when the case was fixed for trial by the court the suit (for annulling the judgment in the separation suit) was not at issue, no answer having been filed by the defendant (Mr. Ooltraro) in said suit to annul.”

The objection was ordered referred to the merits, and the “court orders the case to be proceeded with.”

It appears to be a fact that no answer had been filed in the proceeding, and the ruling of the court was in error. Issue had not been joined, and the suit was not ready for trial.

On the same date, May 13, judgment was rendered “in favor of the defendant, in the main demand, and the plaintiff in the suit to annul, Rosa Lotuso, wife of Joseph Ooltraro, annulling the judgment rendered !by this court on the 2d of May, 1918, and signed on the 8th day of May, 1918, and the clerk of this court is hereby ordered to place this case upon the ordinary call docket and let same be fixed for. trial.”

The case ordered to be put on the call docket was doubtless the original case of Joseph Ooltraro versus his wife for abandonment.

The judgment annulling the original judgment in the case was prematurely rendered, and must be set aside.

It is therefore ordered, adjudged, and decreed that the judgment appealed from rendered May 13, 1919, and signed May 20, 1919, be annulled, avoided, and reversed, and that the case be remanded to be proceeded with according to law; costs of appeal to be paid by Rosa Lotuso, wife of Joseph Ooltraro.  