Edwards v. Edwards

• Decision Date: 22 August 1973
• Docket Number: No. 9475,9475
• Citation: 282 So.2d 858
• Parties: Wallace A. EDWARDS v. Marion Larose EDWARDS.
• Court: Court of Appeal of Louisiana — District of US

Page 858

282 So.2d 858

Wallace A. EDWARDS v.Marion Larose EDWARDS.

No. 9475.

Court of Appeal of Louisiana, First Circuit.

Aug. 22, 1973.

Rehearing Denied Sept. 26, 1973.

Writ Refused Nov. 21, 1973.

Gibson Tucker, Jr., New Orleans, for appellant.

Julian J. Rodrigue, Covington, for Judge Edwards.

John J. Broders, New Orleans, for Henry Z. Carter, adjudicatee.

Before LANDRY, TUCKER and PICKETT, JJ.

LANDRY, Judge.

Defendant, Marion Larose Edwards(Appellant), appeals from a judgment rejecting her action to set aside a Sheriff's Sale of real property, and declare null the judgment on which the sale was predicated, on the ground the judgment was improperly amended after having became final.The amendment complained of changed the place of the sale from the situs of the property to the Parish Courthouse, St. Tammany Parish.We affirm upon finding Appellant is estopped to challenge the validity of the sale because of her having participated therein.

The facts giving rise to this present litigation are undisputed.In a prior action between the parties at bar, judgment was rendered by the trial court decreeing a partition by licitation of certain immovable and movable property belonging to the community which existed between litigants as husband and wife.The judgment ordered the sale be held at 'Summerhill Farm, Million Dollar Road, Post Office Address Route 2, Box 39, Covington, Louisiana', the former matrimonial domicile of the parties litigant.Said judgment was affirmed on appeal to this court.An application to the Supreme Court for writs of review was denied.The judgment having become final, the property was advertised for sale, in accordance with the aforementioned judgment, on February 21, 1973, at Summerhill Farm, at 10:00 A.M., but the sale was not held as advertised.Instead, on February 13, 1973, on ex parte motion of Appellee, Wallace A. Edwards, the judgment of this court was made the judgment of the trial court thus making it immediately executory in compliance with LSA-C.C.P. art. 2251.Simultaneously, Appellee, Edwards, ex parte moved for and was granted judgment amending the place of court's judgment by changing the place of the sale from Summerhill Farm to the Courthouse of St. Tammany Parish, Covington, Louisiana.The amendment was obviously intended to comply with LSA-R.S. 13:4341, which requires that public sales of immovable property be held at the courthouse of the parish in which the property is situated.Pursuant to the amended judgment, the property was readvertised for sale on March 21, 1973, at the Courthouse, Covington, Louisiana.

Although Appellant attended the March 21, 1973 sale, accompanied by her attorney, no protest against the conduct of the sale was made or entered on Appellant's behalf.On the contrary, Appellant participated in the sale by bidding on numerous movables and actually purchasing some of the movables offered for public auction.A portion of the immovables was purchased by Appellee, Wallace A Edwards.The bulk of the immovables, consisting of the family home, was purchased by Appellee, Henry Z. Carter.Immediately following the public sale, on the same day thereof, Appellant instituted this action seeking the nullity of the sales to Appellees, and a temporary restraining order and preliminary injunction prohibiting the Sheriff of St. Tammany Parish from completing these transactions.It is noteworthy that Appellant does not seek dissolution of the sale of the movables she acquired at the sale in question.Appellant, however, did not present her application for a temporary restraining order and preliminary injunction to the court below until March 26, 1973.Meanwhile, on March 22, 1973, the Sheriff completed his proces verbal of the sales in question and duly recorded said transfers in the conveyance records of St. Tammany Parish as required by law.Appellant's application for a preliminary injunction was set for trial on April 10, 1973.The matter was duly heard on the appointed date following which judgment was rendered rejecting Appellant's demands and claims in toto and declaring the attacked sales valid.

The sole issue posed by this appeal is whether the amendment of the judgment by the trial court changing the place of the sale from Summerhill Farm to the Courthouse, St. Tammany Parish rendered said judgment null and void and vitiated the Sheriff's Sales predicated thereon.

Appellant contends the trial court lacked authority to amend the judgment in question because: (1) Once the judgment in question was affirmed by this court and became final, all...