Lazarus v. McGuirk

• Decision Date: 01 March 1890
• Docket Number: 10,498
• Citation: 42 La.Ann. 194,8 So. 253
• Court: Louisiana Supreme Court
• Parties: HENRY L. LAZARUS v. ARTHUR MCGUIRK

8 So. 253

42 La.Ann. 194

HENRY L. LAZARUS v. ARTHUR MCGUIRK

No. 10,498

Supreme Court of Louisiana

March 1, 1890

APPLICATION for Injunction.

Harry H. Hall, for Plaintiff.

Girault Farrar, for Defendant.

OPINION

FENNER, J.

The petitioner invokes the exercise of our original jurisdiction to restrain, by injunction, the execution of a judgment rendered by us in the exercise of the same jurisdiction, and to annul and set aside the same judgment on the ground that it was obtained through fraud and ill practice.

Although no express pleading was filed to that effect, our jurisdiction to entertain such a cause is questioned in the brief of defendant's counsel, and as it is a matter of which we may and must take cognizance, however brought to our attention, we will first consider it. We are of opinion that when the Constitution conferred upon this court original jurisdiction to hear and decide causes involving the removal from office of inferior judges, it conferred, at the same time, all the powers necessarily or usually incident to such jurisdiction, including the powers to execute our decrees by the writs provided for that purpose, to control, regulate and restrain such execution in proper cases, and to annul our judgments in the cases and by the methods provided by law.

This principle is expressly declared by the Code of Practice which announces: "All judges possess the powers necessary for the exercise of their respective jurisdictions though the same be not expressly given by law." Art 130.

Neither the Constitution nor any particular law confers upon this court express authority to issue the writ of fi. fa.; yet we issued it when called on, because it was the mode provided by law for the execution of judgments by courts of original jurisdiction.

For the same reason, though the law does not expressly authorize us to issue the writ of injunction, yet as it is the legal method of restraining execution by the courts which issued it, in proper cases, we granted our order for the writ.

So, as the law authorizes courts of original jurisdiction to revise and set aside their own definitive judgments in an action of nullity brought on proper grounds, we may entertain such an action to annul a judgment rendered by us in the exercise of original jurisdiction. C. P. 556, 604, et seq.

All these proceedings are germane and ancillary to the case in which our original judgment was rendered, and to the original jurisdiction vested by the Constitution and exercised therein.

We, therefore, conclude that the general objection to our jurisdiction is not good.

The defendant has filed several exceptions to the action, founded in law, which are the sole matters presently submitted for determination.

For the understanding and decision of the exceptions it will be necessary, first, to analyze and state the allegations of the petition.

Divested of unusual and unnecessary prolixity, these are substantially as follows:

1. That at the trial in this court of the cause of State ex rel. Attorney General vs. Lazarus, defendant was appointed by order of the court to act as stenographer therein.

2. That in the decree rendered in said cause, petitioner was condemned to pay all costs.

3. That after rendition of said decree, defendant, in common with the sheriff and the clerk of court, voluntarily and expressly remitted and released petitioner from all liability for costs due to them respectively, which remission was accepted by petitioner.

4. That after said release, defendant, being advised that the State, as plaintiff in said cause, was primarily liable for costs, applied to petitioner to approve his bill of costs, which was done by petitioner's counsel under his direction.

5. That in the month of May, 1888 (omitting reference to the first discontinued rule), defendant took a rule upon the State and upon petitioner to show cause why his bill, already approved by petitioner's counsel, should not be taxed as costs in the sum of $ 3220, "and execution issued accordingly."

6. That on receiving notice of said rule, petitioner called on defendant and asked him whether he meant, in violation of his release and remission, to obtain judgment against him, petitioner, for his bill; that defendant then disclaimed any such purpose; reasserted the remission; declared that the sole purpose of the rule was to have the amount of his bill taxed by the court as the basis for an application to the Legislature for relief and payment; further declared that plaintiff was made a party pro forma under the advice of counsel that he was a necessary party, and to avoid delays and postponement of trial, and requested him not to appear or make defence to the rule.

7. That acting upon defendant's request, and relying on his statements, petitioner made no appearance or defence to the rule, and abstained from making defences, which, if interposed, would have defeated the same.

8. That after hearing, this court rendered its decree on said rule, rejecting the demand against the State, and further decreeing: "By reason of the default of respondent and the law and evidence being in favor of plaintiff in rule and against respondent, it is ordered and decreed that the amount of plaintiff's demands be fixed at the sum of $ 3220." (We amplify the allegations of the petition by quoting the language of our decree referred to, in order to avoid repetition.)

9. That after rendition of said decree, defendant, time and again, repeated the assurance that he had released petitioner from all liability for his said costs, and devoted himself to efforts to get a bill passed through the Legislature for his relief.

10. That petitioner trusted and confided in defendant's statements; and that defendant never made any demand on him for payment, or attempted, in any manner, to execute the decree until December 2, 1889, when the fi. fa., now complained of, was issued.

11. That petitioner's inactivity and failure to defend said rule were induced by the aforesaid fraudulent conduct and representations of defendant, and that, but for the same, he had and would have interposed valid defences thereto, such as:

1. The remission and release which defendant had made of his claim.

2. That the claim formed no part of the costs which, as defendant in the original cause, petitioner was condemned to pay, but arose out of a contract of employment (whatever this may mean), etc.

3. That even if the defendant's claim could be taxed as costs, then petitioner could, in no event, be held liable for more than the costs of taking and writing out the testimony, and certainly not for costs of copies made for the use of members of the court and for opposing counsel, as well as for counsel of petitioner.

4. That the bill was excessive, so far as petitioner was concerned, because rendered while defendant was employed on regular salary by petitioner's leading counsel, who allowed him to act as stenographer in said cause without suspending his salary, as an act of friendship to petitioner.

5. That he had other good and valid defences which he would have urged, etc.

We will consider the exceptions interposed by defendant in the following order:

I.

Want of Proper Parties. -- The only judgment sought to be annulled is the decree rendered on the rule to tax costs. The petitioners, on whose relation the original suit was brought, were discharged from liability for costs under the plain terms of both the law and the judgment. They were not parties to the rule, and have no interest, direct or indirect, in the judgment therein.

So far as the State is concerned, an effort was made to make her a party to the rule, and a citation was served on the Attorney General, but we held that she was not and could not be made a party, never having given her consent thereto, and that no judgment could be rendered against her. The attempt to make her a party to this suit would be equally vain, and it is manifest that she has not the slightest interest in the judgment attacked.

This exception has no merit.

II.

Prescription of One Year. Art. 613, C. P., declares: "When a judgment has been obtained through fraud on the part of the plaintiff * * * the action for annulling such judgment must be brought within one year after the fraud has been discovered. * *" In this case, under the averments of the petition, the fraudulent character and purpose of the representations of defendant, upon the faith of which petitioner permitted a judgment on the rule to go without appearance or defence, were not made apparent nor discovered by him until, in violation of those statements and representations, defendant sought to execute the judgment. Up to that moment, if the allegations be true, petitioner regarded, and had the right to regard, the judgment as being, what upon its face it purports to be, a simple fixing of the total value of plaintiff's services as a basis for asking relief from the State, but, under defendant's representations and agreements, inoperative against petitioner. It was only when defendant issued the fi. fa. that petitioner discovered that the representations which he had believed to be true were false and fraudulent. Whether fraud of this kind be a ground for annulling the judgment will be discussed later, but, if it be, the plea of prescription is certainly untenable.

III.

Res Judicata. -- It is well settled that the judgment sought to be annulled can not be pleaded as res judicata to the action of nullity. Edwards vs. Edwards, 29 An. 599; Anderson vs. Benham, 40 An. 338.

It is said, however, that the res judicata is not pleaded as against the defences which petitioner might have pleaded in that action. But the action is based on the ground that petitioner was prevented from...