Eureka Homestead Soc. v. Clark

• Court: Louisiana Supreme Court
• Writing for the Court: O'NIELL, J.
• Citation: Eureka Homestead Soc. v. Clark, 145 La. 917, 83 So. 190 (La. 1919)
• Decision Date: 03 November 1919
• Docket Number: 23586
• Parties: EUREKA HOMESTEAD SOC. v. CLARK. In re EUREKA HOMESTEAD SOC

83 So. 190

145 La. 917

EUREKA HOMESTEAD SOC. v. CLARK.

In re EUREKA HOMESTEAD SOC

No. 23586

Supreme Court of Louisiana

November 3, 1919

McCloskey & Benedict and Henry B. Curtis, all of New Orleans for applicant.

Charles J. Rivet and Delvaille H. Theard, both of New Orleans, for respondent.

On Motion to Rescind Writ.

OPINION

O'NIELL, J.

Counsel for defendant, Clark, has filed a motion to have the writs of certiorari and review rescinded, because the plaintiff relator herein, did not file a brief within the 20 days allowed. There is no law nor rule of court imposing that penalty for a failure to file a brief in support of an application for a writ of review, under article 101 of the Constitution. The delay of 20 days allowed for the filing of briefs, which we invariably grant when we issue a writ of review to the Court of Appeal, is a matter of grace, not a mandate. The only unfortunate consequence that may result from an attorney's negligence in that respect is that his client and we are thereby deprived of the benefit of the brief, in our effort to decide the case right.

The motion to have the writs rescinded is therefore overruled.

On the Merits.

The issue presented requires an interpretation of article 2, and particularly of section 200, of the act of Congress approved March 8, 1918 (Act March 8, 1918, c. 20, 40 Stat. 441 [U. S. Comp. St. § 3078 1/4 bb]) entitled 'An act to extend protection to the civil rights of members of the military and naval establishment of the United States engaged in the present war.' The question is whether a judgment of a court of competent jurisdiction, rendered against the defendant on default of an appearance by him or by an attorney or agent to represent him, and without 'an affidavit setting forth facts showing that the defendant is not in military service,' is absolutely null, or is only voidable at the instance of a defendant in military service.

It is not contended on behalf of defendant that he is or was in the military service. The suit was brought, and judgment rendered in the civil district court, on promissory notes, for $ 840, bearing interest and attorney's fees. The citation and copy of petition were served upon defendant personally and, no appearance having been made by or for him within the delay allowed by law, judgment by default was entered against him. At the expiration of the time allowed by law for setting aside the judgment by default, the case was taken up, and on proof of the claim, but without an affidavit showing that defendant was not in the military service, the judgment was confirmed. Thereafter, when the judgment had been read and signed, defendant appeared in court through his attorney, and, alleging merely that the judgment was contrary to the law and the evidence and that he was aggrieved thereby and desired to appeal therefrom, obtained a suspensive appeal to the Court of Appeal for the parish of Orleans. Plaintiff then filed in the Court of Appeal an ex parte affidavit, declaring that affiant had known the defendant for a period of about 15 years, and that he was not and had not been in the military or naval service of the United States, and was beyond the draft age. Defendant's counsel moved that the affidavit be expunged from the record, which motion was taken under advisement by the Court of Appeal, and was not thereafter adverted to, except in an expression in the final judgment, to the effect that the court's conclusion that the judgment appealed from was null rendered it unnecessary for the court to consider the question whether the affidavit was admissible or should be expunged from the record. The judgment of the civil district court was annulled and the case was remanded for further proceedings according to law. The case is before us on writs of certiorari and review issued at the instance of the plaintiff.

Opinion.

In view of the statute of this state (Act No. 131 of 1918, p. 217) which is a replica of the act of Congress approved March 8, 1918, we deem it unnecessary to decide whether the Congress of the United States had authority to so regulate proceedings in state courts, for the protection of the civil rights of persons in military service, as to declare that a judgment rendered against a person not in military service, without prima facie evidence that he was not in military service, should be absolutely null. The state law became effective after the citation was served upon the defendant in this case but before the judgment by default was entered. It appears that ...