Henson v. Henson

• Decision Date: 01 June 1959
• Docket Number: No. 43824,43824
• Citation: Henson v. Henson, 112 So.2d 664, 237 La. 929 (La. 1959)
• Parties: Gertrude HENSON v. Harvey HENSON.
• Court: Louisiana Supreme Court

Page 664

112 So.2d 664

237 La. 929

Gertrude HENSON v. Harvey HENSON.

No. 43824.

Supreme Court of Louisiana.

June 1, 1959.

Nathan Greenberg, Gretna, for defendant-appellant.

Jacob H. Sciambra, Gretna, for plaintiff-appellee.

HAWTHORNE, Justice.

The only question raised by this appeal is the validity of an ex parte order of the district court of Jefferson Parish, Louisiana, recognizing a judgment of the district court of Sedgwick County, Kansas.

On March 29, 1957, Mrs. Gertrude Henson, a resident of Sedgwick County, Kansas, filed a petition in the Twenty-fourth Judicial District Court for the Parish of Jefferson in which she alleged that on November 5, 1956, there was rendered in the district court of Sedgwick County, Kansas, in proceedings entitled 'Gertrude Henson v. Harvey Henson', No. A--49,516 on the docket of that court, a judgment in her favor against Harvey Henson for $800. Annexed to the petition were a certified copy of the Kansas judgment, a certificate of the clerk and seal of the court, and a certificate of the judge of the court that the attestation was in proper form.¹ The petition alleged that Harvey Henson was presently a resident of Jefferson Parish, and that petitioner desired to examine him as a judgment debtor under the provisions of R.S. 13:4311. Petitioner prayed that she have the privilege of examining Harvey Henson as a judgment debtor at a time and place to be fixed by the court, and that he be ordered to produce in court at the same time certain books, papers, and documents described in the petition.

On April 1, 1957, the district court of Jefferson Parish signed an order reading as follows:

'Let the judgment of the District Court of Sedgwick County, Kansas, be recognized and let Harvey Henson be duly ordered and cited to appear in open court on the 15th day of April, at 10:00 o'clock a.m., to be examined as judgment debtor under the provisions of R.S. 13:4311.

'Let Harvey Henson be further notified and summoned to produce at the above time, the books, papers and documents described hereinabove.'

A certified copy of the petition and order was served on the defendant in rule, Harvey Henson, on April 4, 1957. It is to be noted that at the time defendant was served, the order of the district judge recognizing the Kansas judgment had already been signed.

On April 15 this judgment debtor rule came on to be heard, there being present counsel for both parties, and according to the minutes on that date the following order was entered by the court: '* * * after the rule was submitted to the Court, the Court ordered the Rule satisfied.'

On June 27 Mrs. Henson caused a fi. fa. to be issued, directed to the sheriff of the Parish of Jefferson, for the purpose of satisfying the Kansas judgment plus costs. About this time she filed a supplemental petition alleging that she had reason to believe that the California Company was indebted to Henson ahd asking that that company be made garnishee. In due course interrogatories were propounded to the company, which answered that the defendant Henson was in its employ, stated his wages, and admitted that it was indebted to Henson in a stipulated amount. Henson appeared in these proceedings asking to have the writ of garnishment recalled and set aside on the ground that the Kansas judgment had been recognized by the Jefferson Parish district court in an exparte proceeding without citation, and that consequently the order of the Jefferson Parish district court was null and void.

From this statement of facts it will be observed that the lower court recognized the Kansas judgment in a summary proceeding without citation of the defendant and even before the service of the rule itself.

Formerly a creditor with an out-of-state judgment could proceed against a debtor in Louisiana by executory process. It is now well settled, however, that the only method of procedure in this state on such a judgment is by ordinary action with citation and service or by seizure of the debtor's property. Succession of Macheca, 147 La. 164, 84 So. 574; State ex rel. Macheca v. Dunn, 148 La. 460, 87 So. 236; Turley v. Dreyfus, 33 La.Ann. 885. Under this jurisprudence, therefore, the ex parte order of...