Bonnelucq v. Bernard

• Decision Date: 10 March 1947
• Docket Number: 18650.
• Citation: 29 So.2d 486
• Court: Court of Appeal of Louisiana — District of US
• Parties: BONNELUCQ v. BERNARD.

29 So.2d 486

BONNELUCQ v. BERNARD.

No. 18650.

Court of Appeal of Louisiana, Orleans.

March 10, 1947

Rehearing Denied April 21, 1947.

Phil Trice, of New Orleans, for plaintiff and appellant.

Marion G. Seeber, of New Orleans, for defendant and appellee.

JANVIER Judge.

This matter is now before us on motion of defendant-appellee to dismiss both the suspensive and the devolutive appeals taken by plaintiff-appellant.

Plaintiff claims of defendant $285 with interest and attorney's fees, alleging that she and her husband, who is now dead were former tenants of defendant, occupying a portion of a residence owned by him at an agreed rental charge of $45 per month; that shortly after the death of her husband, the rent was reduced to $35 per month; that the said defendant Bernard, did not comply with the requirements of the 'Price Control Law requiring the registration of rental property with the Office of Price Administration'; that the said Office of Price Administration learned of this and fixed the ceiling rental charge at $30 per month, and ordered Bernard to refund $95 as the amount overcharged; that the said Bernard refused to refund the said overcharge and thus rendered himself liable for three times the amount of the overcharge together with interest and attorney's fees all in accordance with the provisions of Section 205(e) of the Federal Statute known as the Price Control Act, 50 U.S. C.A.Appendix, � 925(e).

There was judgment dismissing plaintiff's suit and she has appealed devolutively and suspensively. Defendant-appellee has moved to dismiss both the devolutive and and the suspensive appeals. The grounds on which the motion is based are as follows:

1. 'That the judgment of the lower court was not subject to appeal when the appeal or alleged appeal therefrom was attempted to be taken in the lower court.

2. 'That the appeal was taken in forma pauperis without the giving of bond.', whereas, so mover contends, a suspensive appeal, even in a case brought in forma pauperis, may not be taken without the furnishing of an appeal bond.

We first consider the contention that the judgment of the lower court 'was not subject to appeal' when the appeal was taken. This contention is based on the fact that the judgment from which the appeal is sought was signed before the expiration of three days from its rendition.

The judgment was read, rendered and signed on the same day, January 24, 1947. It is a final judgment, not merely interlocutory, since it completely dismisses plaintiff's suit. Article 546 of our Code of Practice, so far as is pertinent here, reads as follows: 'The judge must sign all definitive or final judgments rendered by him, but he shall not do so until three judicial days have elapsed, to be computed from the day when such judgments were given * * *'. But we do not see that the defendant-appellee has any ground to complain that the judgment was prematurely signed. The purpose of the requirement that a final judgment must not be signed until three days after its rendition is that within that time the unsuccessful party may have an opportunity to apply for a new trial.

The premature signing of a judgment is ineffective and does not render the judgment executory until three days have elapsed; at which time the signature becomes effective, and the judgment becomes executory.

That is what the Supreme Court said in Succession of Lissa, 194 La. 328, 193 So. 663-665, 'Appellees' contention that the judgment was violative of Article 546 of the Code of Practice, because it was signed before the lapse of three judicial days from its rendition, is untenable. The most that can be said of appellees' contention, if the judgment appealed from falls into the class of judgments contemplated by the codal article, is that the judgment was prematurely signed. A judgment prematurely signed is not invalid. It is only ineffective until three judicial days have expired, or until a new trial has been denied if one has been applied for subsequent to the signing of the judgment but within three days after it was rendered. Lory v. Lory, 151 La. 669, 92 So. 272; Saint v. Allen, 169 La. 1046, 126 So. 548; Haas v. Buck, 182 La. 566, 162 So. 181.'

It is true that on ...