Baker v. Jewell

• Decision Date: 16 January 1905
• Docket Number: 15,337
• Citation: 114 La. 726,38 So. 532
• Court: Louisiana Supreme Court
• Parties: BAKER v. JEWELL

38 So. 532

114 La. 726

BAKER v. JEWELL

No. 15,337

Supreme Court of Louisiana

January 16, 1905

On Rehearing April 10, 1905. Rehearing Considered.

Action by Desiree Baker against Walter H. Jewell. Judgment for plaintiff was reversed by the Court of Appeal, and plaintiff brings certiorari or writ of review. Dismissed.

Saunders & Gurley, for applicant, Mrs. Baker.

Fenner Henderson & Fenner, for respondent Hart Land & Improvement Co., Limited.

OPINION

NICHOLLS J.

Statement of Case.

The judgment of the Court of Appeal, parish of Orleans, was ordered up to this court for review on the application of Mrs. Desiree Baker. By that judgment that court on appeal reversed one which had been rendered in her favor in the district court. Her petition for review contains the following allegations: That she instituted proceedings against her husband in the parish of Orleans for a separation from bed and board upon the ground of abandonment and nonsupport. That she was allowed alimony pendente lite, and in the final decree, alimony.

That she recorded the judgment allowing her alimony pendente lite in the mortgage office of this parish. That recently the Hart Land Company, having purchased the interest of her husband in certain real estate after the recordation of her judgment, brought these proceedings to have the judgment canceled in so far as it operated as a mortgage on the property purchased. That the court a qua maintained the judgment. That an appeal was prosecuted by the Hart Company to the Court of Appeal for the parish of Orleans, and that court, on June 23, 1904, rendered judgment refusing to recognize the judgment as operating a mortgage upon the sole and only ground that a judgment for alimony cannot operate as a judicial mortgage.

That petitioner in due course, to wit, June 4, 1904, applied for a rehearing, calling the court's attention to article 3321 of the Revised Civil Code:

"The judicial mortgage is that resulting from judgments (whether these be rendered on contested cases, or by default, or whether they be final or provisional) in favor of the person obtaining them."

That on the original argument of the case the court's attention was called to the case of Carroll v. Carroll, 48 La.Ann. 835, 19 So. 872, wherein your honors held that a judgment for alimony was a sufficient judgment to support an appeal. Petitioner shows that on June 23, 1904, said Court of Appeal refused the rehearing. That the decision of the Court of Appeal was erroneous, and to her prejudice; that the only question involved, namely, does a judgment for alimony, when properly recorded in the mortgage office, give rise to a judicial mortgage? is one raised for the first time in the jurisprudence of this state, and is of great importance to its jurisprudence, and is such an issue as should be examined by this honorable court under authority of article 101 of the Constitution. She annexes hereto certified copies of the judgment of the Court of Appeal, the application for a rehearing, and the refusal of the same.

The judgment of the Court of Appeal sought to be set aside was as follows:

"The Hart Land & Improvement Company, purchaser of one Jewell's right and interest to certain real estate, found against the same a judgment recorded in November, 1897 condemning Jewell to pay his wife alimony pendente lite at the rate of $ 100 a month from April 1, 1897.

"The company moves for the cancellation of the alleged judgment on the following grounds:

"(1) Because it has been paid, satisfied, and acquitted.

"(2) Because it was merely an interlocutory decree rendered during the pending of a suit for separation from bed and board, which could not operate as a judicial mortgage on the property of the defendant.

"(3) Because the defendant was not legally cited, and the judgment would have the effect of depriving him of his property without due process of law, in contravention of the Constitution of the United States. The return to the rule, as we glean it from objections in the note of evidence and the argument made in this court, substantially urges:

"First. That by the plea of payment plaintiff in rule has admitted the correctness of the judgment, and cannot subsequently attack it.

"Second. That the plea that the court was without jurisdiction is a purely personal plea, and cannot be urged by the plaintiff in rule.

"The first objection is not tenable.

"It has been held that the pleas of payment and want of consideration are not so inconsistent but they may well stand together, for the one does not necessarily suppose the other to be false.

"A man may pay a note, and not discover until after the payment is made that the consideration on which he gave it was wanting. Myles v. Miller, 4 Mart. (N.S.) 492.

"By parity of reasoning, Jewell may have paid the judgment without knowing that it was rendered without legal citation; and still greater latitude in pleading should be allowed a third party who is in the dark as to previous occurrences than is granted to the debtor himself.

"As to the second point, we see no good reason why a third person should not have the right to question the validity of a judgment which is invoked as bearing a judicial mortgage on his property.

"We now pass to the second ground urged by the mover as the proper one upon which to rest our conclusion.

"An order for alimony is indeterminate as to duration and amount, is under the control and largely subject to the discretion of the judge, and, even if included in a final judgment, it remains an interlocutory order, subject to modification or revocation by the judge (Imhof v. Imhof. 45 La.Ann. 717, 13 So. 90), who is exclusively vested with the manner of its execution.

"We do not consider such a judgment as susceptible of being executed without an order of the court making it executory.

"In Compton v. Arial, 9 La.Ann. 496, the plaintiff applied to the clerk for a fi. fa. for alimony decreed her by the court. From a judgment refusing to mandamus the clerk to do so an appeal was taken to the Supreme Court, which, in affirming the judgment, said:

"Of the right of the party to enforce the decree for alimony rendered in her favor there can be no question. But we consider the correct practice to be that the party should address himself to the court which rendered the decree. * * * Thereupon the court may, in its discretion, properly render an execution for the arrears of alimony unpaid.

"That order would be a guide to the clerk in issuing a fi. fa., which writ must necessarily express some definite sum. In the present case there is no allegation * * * of any application to the court for an order for a fieri facias.

"Until such an order had been had from the district judge, we do not feel able to say whether he would have allowed the whole of the amount, part of it, or none of it. It may well be assumed that he would have been guided by the circumstances presented at the time of the application. It may be that a settlement of the community in a certain way might lead him to revoke the order for alimony, or that he might find the amount awarded inadequate, or unnecessary, or excessive.

"Therefore no definite sum can be assumed as representing a claim for alimony until on application for a fi. fa. the court names a specific sum for which there shall be execution.

"Until execution issues, the amount due remains inchoate and in abeyance, and no judicial mortgage within the intendment of article 3321, Civ. Code, results from the inscription of the judgment, unless such judgment be for a definite and specific sum, and whether it be final or provisional. See, also, Guidery v. Guidery, 2 Mart. (O.S.) 135.

"The analogy suggested by respondent of tacit mortgage formerly obtaining recognition, though indeterminate, is not apt. Thus a minor's mortgage can be enforced only after the tutor's functions terminate, and only for the amount judicially ascertained to be due at that time.

"Until such judgment is rendered as declares a specific sum to be due it, it operates as a legal, and not a judicial, mortgage. Such is not the case with a decree for alimony, arising not by operation of law, but by judicial action, and which may be amended or revoked until its execution has been ordered. The remedy is in the hands of the judgment creditor. The judgment herein must be either in personam or in rem. There is no other known to the law. The former we have discussed on the theory advanced by respondent that the court in a matter of marital status had jurisdiction to render as an inseparable incident to the suit the decree for alimony (a question not intended to be now passed on), and our conclusion is that no mortgage resulted from the judgment because it was indeterminate.

"Should, on the other hand, the theory that the proceeding is in rem, be urged, the registry of the judgment would not have created a mortgage, because there was no seizure of property, which alone could invest the court with jurisdiction. Herber v. Abbott, 39 La.Ann....