Alonso v. Bowers
| Decision Date | 23 March 1953 |
| Docket Number | No. 40152,40152 |
| Citation | 64 So.2d 443,222 La. 1093 |
| Parties | ALONSO v. BOWERS. |
| Court | Louisiana Supreme Court |
Phil Trice and Walter Andry, New Orleans, for defendant-appellant.
Edward J. Stoulig, Kenner, for plaintiff-appellee.
On February 18, 1948, the Twenty-fourth Judicial District Court for the Parish of Jefferson rendered a judgment in a suit on an open account in favor of plaintiff therein, Walter Bowers, and against defendant therein, Albert Alonso, in the sum of $4,167.22. In the case before us, the plaintiff in that suit, defendant here, has appealed from a judgment rendered by the district court of Jefferson Parish on October 26, 1950, annulling and setting aside the previous judgment in his favor.
The suit on the open account was filed on July 17, 1946, by Walter Bowers, defendant-appellant herein, against Albert Alonso for an alleged indebtedness in the sum of $1,920.50 for merchandise sold and delivered. The defendant after being duly cited appeared through counsel and filed an exception of vagueness, specifically setting forth certain particulars in which the petition was vague and indefinite. No action was taken on this exception, but on December 15, 1947, some 14 months after it was filed, plaintiff in that suit filed a supplemental and amended petition, purporting to satisfy the specific allegations of vagueness urged by the defendant in his exception. In this petition plaintiff increased the sum prayed for to $4,167.22. Domiciliary service of this amended petition was duly made. On February 2, about 30 days after service of this petition, plaintiff in that suit entered a preliminary default against the defendant, and 16 days later, on February 18, 1948, judgment was rendered in confirmation of the default. This is the judgment which the district court annulled and set aside in the instant suit.
No notice of the default judgment was served on either Alonso or his counsel, and neither of them had any knowledge of the judgment until more than a year after the date of its rendition, when a judgment debtor rule was taken against Alonso by Bowers in April, 1949. Shortly thereafter Alonso filed this suit to annul the judgment.
On the trial of this case Alonso admitted that the supplemental and amended petition was served at his domicile on his wife and that she gave it to him, but testified that, since he had employed an attorney to defend him in that suit with instructions to deny the correctness of the account sued on, he thought that his counsel was aware of all matters connected with the suit, and that it never occurred to him that there was any necessity of apprising his attorney of the fact that the supplemental and amended petition had been served.
Alonso's attorney testified that he was never apprised, either by his client Alonso, by the attorney for Bowers, or by any other person, of the filing of the amended and supplemental petition, and that he had no knowledge of any pleadings filed or any steps taken in the suit after the filing by him of the exception of vagueness, and had no knowledge of the default taken or judgment rendered against his client until informed of the judgment debtor rule filed by Bowers. None of this is disputed by the appellant.
According to Article 605 of the Code of Practice, the causes for which the nullity of a definitive judgment may be demanded are those that are relative to form and those that appertain to the merits of the question tried. According to Article 607, one of the cases in which such judgment may be annulled is where it appears that it was obtained by ill practices on the part of the party in whose favor it was rendered. Under the jurisprudence any improper practice or procedure which enables a party to obtain a definitive judgment comes within the meaning of this article. The courts have looked at each case from a purely equitable viewpoint to ascertain whether allowing the judgment to stand would be inequitable or unconscionable in view of the practice or procedure which enabled the party to obtain such judgment. See Lacoste v. Robert, 11 La.Ann. 33; City of New Orleans v. LeBourgeois, 50 La.Ann. 591, 23 So. 542; Tarver v. Quinn, 149 La. 368, 89 So. 216; Succession of Gilmore, 157 La. 130, 102 So. 94; Walsh v. Walsh, 215 La. 1099, 42 So.2d 860; Coltraro v. Chotin, 1 La.App. 628.
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