First Nat. Bank of Jefferson Parish v. Rall

• Decision Date: 15 October 1992
• Docket Number: No. 91-CA-2393,91-CA-2393
• Citation: 607 So.2d 716
• Parties: FIRST NATIONAL BANK OF JEFFERSON PARISH v. Stanley V. RALL.
• Court: Court of Appeal of Louisiana — District of US

Page 716

607 So.2d 716

FIRST NATIONAL BANK OF JEFFERSON PARISH v. Stanley V. RALL.

No. 91-CA-2393.

Court of Appeal of Louisiana Fourth Circuit.

Oct. 15, 1992.

Stephen A. Fritch, New Orleans, for defendant-appellant.

Jules A. Fontana, Jr., New Orleans, for plaintiff-appellee.

Before SCHOTT, C.J., and KLEES and BYRNES, JJ.

BYRNES, Judge.

Stanley V. Rall appeals a judgment denying his petition to annul judgment and for injunctive relief. We affirm.

On February 5, 1991 the First National Bank of Commerce of Jefferson Parish obtained a judgment by default in the First Parish Court for the Parish of Jefferson against Stanley V. Rall in the amount of $4,337.38 with interest based upon a promissory note.

On June 3, 1991 the Bank filed a petition to make the judgment executory and for garnishment in the First City Court for the City of New Orleans. In that proceeding, Stanley Rall filed a petition to annul the Jefferson Parish judgment and for injunctive relief. The trial court rendered judgment against Mr. Rall without written reasons. After his motion for a new trial was denied, he filed this suspensive appeal.

Stanley Rall argues that the original judgment rendered in Jefferson Parish should be annulled because the original petition was never properly served. Mr. Rall contends that domiciliary service upon his 11 year old stepson, Jeffery Roach, (or any eleven year old) is defective per se.

Mr. Rall further argues that pursuant to LSA-C.C.P. Art. 2002(2) that this service defect renders the judgment of the First Parish Court for the Parish of Jefferson absolutely null, which nullity he may assert collaterally, and at any time, as he did in the First City Court for the City of New Orleans garnishment proceedings.

LSA-C.C.P. Art. 2002(2) provides that among those judgments which may be annulled are those rendered "against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken."

Comment (e) of the Official Revision Comments to LSA-C.C.P. Art. 2002 states that "it adopts the jurisprudence to the effect that an action of nullity based on any of the grounds enumerated may be raised collaterally and at any time" and cites numerous cases. We agree with this comment, and the cases cited therein. See also Le Glue Buick, Inc. v. Smith, 390 So.2d 262 (La.App. 3rd Cir.1980); Knight v. Sears, Roebuck & Co., 566 So.2d 135 (La.App. 1st Cir.1990), writ denied 571 So.2d 628 (La.1990).

Appellee, the First National Bank, cited the Knight case in support of its contention that Mr. Rall could only bring his action to annul the judgment in Jefferson Parish where the judgment was rendered. The Knight case does hold that a direct action in nullity under LSA-C.C.P. Art. 2004 must be brought in the court where the judgment was rendered. But the Knight case also states that where the issue is the absolute nullity of the judgment pursuant to LSA-C.C. Art. 2002 as Mr. Rall contends, then the issue may be raised "at any time and before any court."

LSA-C.C.P. Art. 1234 provides that:

Domiciliary service is made when a proper officer leaves the citation or other process at the dwelling house or usual place of the person to be served with a person of suitable age and discretion residing in the domiciliary establishment.

Prior to 1960, service was not valid on anyone under the age of 16. See former Louisiana Code of Practice Article 186(9). The changes in the statute replaced the age limitation with a case by case review when service was attacked on the basis of serving a minor child. We, therefore, agree with Mr. Rall's contention that the question of whether any child under 12 years of age could "be considered a person of suitable age and discretion" upon whom service could be made raises the issue of the absolute nullity of the judgment of the First Parish Court for the Parish of Jefferson. It follows that Mr. Rall had the right to collaterally attack that judgment in the garnishment proceedings in First City Court for the City of New Orleans, and the judge of that court had the proper jurisdictional authority to adjudicate the matter as he did.

In Nationwide Acceptance Company v. Alexis, 201 So.2d 21, 23 (La.App. 4th Cir.1967), the court held that "a child under 6 years of age could hardly be considered a person of suitable age and discretion for such an important procedural aspect as this.... Surely it was not the intention of the redactors, by the wording of LSA-C.C.P. Art. 1234, to make possible the service of process upon a 5-year-old child. Therefore, the defendants were not served with process as required by law." The court held that a default judgment based on such service was an absolute nullity pursuant to LSA-C.C.P. Art. 2002(2).

If all children under 6 years of age are automatically incompetent to accept service, is the same thing necessarily true for all children under 12? In Sears, Roebuck & Co. v. Callaway, 139 So.2d 86 (La.App. 4th Cir.1962) cited by Mr. Rall, service upon a 14-year-old girl was deemed to be reasonable and valid.

As pointed out by the appellee, First National Bank of Jefferson Parish, there is a dearth of cases in Louisiana dealing with this issue. None in fact, address the issue of service upon children over 6, but under 14 years of age, the limits encompassed by the Nationwide Acceptance case and the Sears case respectively.

...