De Blanc v. De Blanc

• Decision Date: 12 June 1944
• Docket Number: 17946.
• Citation: 18 So.2d 619
• Court: Court of Appeal of Louisiana — District of US
• Parties: DE BLANC v. DE BLANC.

18 So.2d 619

DE BLANC v. DE BLANC.

No. 17946.

Court of Appeal of Louisiana, Orleans.

June 12, 1944

Rehearing Denied Oct. 2, 1944.

Hugh M. Wilkinson, A. Miles Coe, and John D. Lambert, all of New Orleans, for plaintiff-appellee.

E Howard McCaleb, Sr., of New Orleans, for defendant-appellant.

JANVIER Judge.

On September 25, 1942, in the Twenty-Fourth Judicial District Court for the Parish of Jefferson, Mrs. Susie Lee Connerly DeBlanc filed suit for separation from bed and board against her husband, St. Denis Joseph DeBlanc, Jr. Her attorneys were Messrs. Hugh M. Wilkinson, A. Miles Coe and John D. Lambert. She prayed for provisional and permanent care and custody of their infant son, issue of the marriage, for alimony pendente lite for herself and the said child, for an injunction restraining her said husband from disposing of any of the assets of the community, and that inventories be made of all assets of the said community.

Orders were issued that an inventory be made in each parish in which there was any property of the matrimonial community and the court fixed alimony pendente lite for plaintiff and the infant child and awarded the custody of the child to the said plaintiff.

On November 4, 1943, judgment granting a separation from bed and board was read, rendered and signed.

Inventories were taken in the three parishes in which there was property of the community. The inventory in the Parish of Orleans was taken by John D. Lambert, notary public, with the assistance of Lawrence Marrero and John C. Holderith, appraisers. The inventory in the Parish of Jefferson was taken by Frank H Langridge with M. J. Pitrie and Thomas Rhodes, appraisers. We are not concerned with the inventory which was taken in the Parish of St. Helena.

The inventory taken in Orleans Parish shows that the assets in that parish were appraised at $33,686, and the inventory taken in the Parish of Jefferson shows that the assets in that parish were appraised as $15,863.05.

During the early part of November, 1942, there was a reconciliation of the parties.

On December 8, 1942, Messrs. Wilkinson and Coe who had represented Mrs. DeBlanc in obtaining the judgment of separation and the incidental orders, etc., called upon Mr. and Mrs. DeBlanc for payment to them of a fee of $2,000 and for the payment of certain costs, with some of which we are not concerned, and for the payment also of the fees of the notaries and appraisers mentioned above. They demanded the following amounts: For Frank H. Langridge, notary in Jefferson Parish, $158.63; for M. J. Pitrie and Thomas Rhodes, appraisers in the Parish of Jefferson, $39.65 each; for John D. Lambert, notary in Orleans Parish, $336.86; for Lawrence Marrero and John C. Holderith, appraisers in Parish of Orleans, $84.21 each.

On December 11, 1942, Mr. and Mrs. DeBlanc, through their then attorney, Mr. E. Howard McCaleb, Sr., advised Messrs. Wilkinson and Coe that Mr. and Mrs. DeBlanc objected "to each and every item of the foregoing statement as due by them or either of them for the amounts therein set forth."

On January 18, 1943, Messrs. Wilkinson and Coe filed this rule against Mr. and Mrs. DeBlanc calling upon them to show cause why the charges mentioned above should not be taxed as costs and ordered paid out of the community which had formerly existed between Mr. and Mrs. DeBlanc. In this rule Messrs. Wilkinson and Coe stated that they were attorneys for "plaintiff in the above and foregoing cause." To this rule respondents filed exceptions of misjoinder of parties and of causes of action, and in their exception maintained that "hearing of this rule should be limited to the notarial and appraisers' fees * * *". With these exceptions, respondents also filed answer to the rule in which they contended that the fees were excessive. They made no other contentions.

When the rule came on for trial the court was advised that all of the charges except the notarial fees and the appraisers' fees had been adjusted and that the only matters before the court were the question of whether Mr. and Mrs. DeBlanc should be held liable for these fees, and whether the amounts charged were correct. After a trial the rule was made absolute. Mr. and Mrs. DeBlanc have appealed.

Counsel for respondents contends in the first place that Messrs. Wilkinson and Coe are not now the attorneys for Mrs. DeBlanc and that, therefore, in bringing the rule they incorrectly designated themselves as her attorneys. He maintains that if they are her attorneys and are bringing this rule against her as well as against her husband, there is an anomalous situation in that in effect Mrs. DeBlanc is suing herself. Counsel says that we find "actor and adversary combined in the same person."

He is not correct in this. These attorneys did not allege that in bringing the rule they were acting as the attorneys for Mrs. DeBlanc. They merely identified themselves as the attorneys who had represented her in bringing the suit for separation. In the main proceeding, as attorneys for Mrs. DeBlanc, they had provoked the appointment of the notaries for the taking of the inventories and, having been responsible for these appointments, they felt it their duty to call to the court's attention the fact that the fees made necessary by those appointments had not been paid. An attorney is an officer of the court and it is his duty to call to the attention of the court any matter which the court is entitled to know. An attorney who has provoked the appointment of a public official should call the court's attention to the fact that that public official has not been paid.

Counsel contends that the rule shows no cause of action since it appears that the parties have been reconciled. He argues that where there has been a judgment of separation from bed and board and the parties have become reconciled, since the judgment of separation becomes a nullity, a rule to tax as costs fees of public officials, whose services were rendered in connection with the obtaining of the judgment of separation, exhibits no cause of action.

Counsel calls attention to Art. 152 of our Civil Code which provides that "the action of separation shall be extinguished by the reconciliation of the parties * * *." And counsel also cites Succession of Liddell, 22 La.Ann. 9, in which it is held that "If a reconciliation takes place after the decree of separation, the judgment is a nullity." See Syllabus No. 2. We have no doubt that what the framers of the Code meant and what the Supreme Court meant is merely that as between the parties the judgment of separation is no longer in effect and may not be used as a basis for a new suit for divorce. It cannot be meant that because the judgment is a nullity as between the parties, no persons who took part in obtaining it may make claim for fees for services rendered.

As a matter of fact such a judgment is not a complete nullity. It has certain effects; for it dissolves completely and forever the community of acquets and gains. See Succession of LeBesque, 137 La. 567, 68 So. 956, 957, in which the Supreme Court, after recognizing the fact that a decree of separation from bed and board dissolves the community, held that reconciliation did not re-establish the community. The Court said: "* * * there is no law which says that a reconciliation of the spouses superinduces a partnership or community of acquets or gains, as is superinduced by marriage. The court is without authority to legislate upon the subject; * * * it has been twice decided that the community of acquets and gains is not re-established by the reconciliation of the parties, * * *." The two decisions referred to are Ford v. Kittridge, 26 La.Ann. 190 and Crochet v. Dugas, 126 La. 285, 52 So. 495.

The public officials whose services were rendered in connection with the obtaining of the judgment of separation are entitled to be paid for their services even though, as between the parties, the judgment has been nullified by their reconciliation. We therefore conclude that the rule to tax charges for such services as costs exhibits a cause of action.

The contention is made that in no event may the wife be held liable for any of these charges. If the community still existed it would be liable for the...