Ludeling v. Chaffe

• Decision Date: 01 June 1888
• Docket Number: 1,201
• Citation: 40 La.Ann. 645,4 So. 586
• Parties: JOHN T. LUDELING v. J. & C. CHAFFE, ET AL
• Court: Louisiana Supreme Court

4 So. 586

40 La.Ann. 645

JOHN T. LUDELING v. J. & C. CHAFFE, ET AL

No. 1,201

Supreme Court of Louisiana

June 1, 1888

APPEAL from the Fifth District Court, Parish of Ouachita, W. F Millsop, Judge ad hoc.

Plaintiff and Appellant in propria persona.

Stubbs & Russell and C. J. & J. S. Boatner, for Defendants and Appellees.

OPINION

FENNER J.

This is an injunction suit to restrain the execution of a judgment rendered against plaintiff and affirmed by this Court in a certain suit entitled J. & C Chaffe vs. Ludeling, reported page 962 of 34th Annual Reports. J. & C. Chaffe were recorded judgment creditors of Mrs. E. C. Warfield, and the suit just referred to was a hypothecary action brought against Ludeling as third possessor of certain property claimed to be subject to their judicial mortgage, and judgment was asked recognizing their mortgage on the said property and decreeing it to be sold in satisfaction thereof. Defendant interposed a plea of discussion and other defenses, which were overruled for reasons given in the opinion, and judgment was rendered recognizing the mortgage and condemning Ludeling "either to pay the judgment with the costs thereof or to give up the land to be sold therefor."

This judgment was affirmed by this Court.

It is too obvious to admit of serious discussion that this judgment absolutely and finally settled, as between the Chaffes and Ludeling, the right of the former to require Ludeling to pay off their mortgage debt or to sell the land for the satisfaction thereof. Ludeling has had his day in court on this issue and was bound to urge all his defenses, and his mouth is closed as to all matters antecedent to the judgment which he urged or might have urged against its rendition.

In his present petition for injunction he sets up a multitude of matters which were either pleaded or might have been pleaded as grounds for denying or qualifying the above absolute judgment, as to all of which the judge a quo sustained the plea of res judicata; and we consider his ruling to be clearly correct.

The plaintiff, however, assigns other grounds for his injunction, arising subsequently to the judgment, which require consideration.

I.

He pleads that the judgment of the Chaffes against Warfield, the record of which is the basis of their mortgage on his property, is preempted and prescribed.

Unless it is prescribed there is no foundation for the plea of peremption, the reinscription having been seasonably made.

The question of prescription depends upon the validity and effect of the proceedings taken by the Chaffes to revive their judgment against Warfield. These proceedings were taken in proper season before the lapse of ten years from the rendition of the judgment.

Article 3547 C. C. provides: "All judgments for money shall be prescribed by the lapse of ten years from the rendition of such judgments. Provided, however that any party interested in any judgment may have same revived at any time before it is prescribed, by having a citation issued according to law, to the defendant or his representative, from the court which rendered the judgment, unless defendant or his representative show good cause why the judgment should not be revived, and if such defendant be absent and not represented, the court may appoint a curator ad hoc to represent him in the proceedings, upon which curator ad hoc the citation shall be served. Any judgment revived as above provided shall continue in full force from the date of the order of court reviving the same, etc."

The defendant, Mrs. Warfield, had removed from the State and died, and had no heirs resident in the State or property situated therein. Prior to her death she had made a surrender in bankruptcy, and her assignee in bankruptcy was still in office, having never been discharged.

In their petition for revival the Chaffes represented the death and bankruptcy of Mrs. Warfield and the non-residence of her heirs; alleged that W. T. Atkins had qualified as assignee of her estate and has never been discharged; set forth the non-residence of her heirs and prayed that "if they were in any sense her representatives" a curator ad hoc should be appointed to represent them; asked that the assignee and the curator should be cited, and for judgment reviving the judgment. A curator was accordingly appointed. Atkins, the assignee, was duly cited and appeared and filed answer. The curator accepted service of the petition and waived citation, but appeared and filed answer. On issue thus joined the court regularly tried the case and rendered a judgment of revival, which is now final.

The plaintiff in injunction has never brought suit to annul this judgment. Even in his present action he has offered no prayer to have the judgment annulled, nor has he brought in any of the parties thereto except the present defendants. He simply treats it as an absolute nullity for want of citation.

It is undoubtedly true that a judgment rendered without citation is a nullity so absolute that it may be invoked in any proceeding and by any one interested.

But here, so far as the assignee is concerned, there was a perfect citation followed by appearance and answer. The petition advised the Court of the grounds on which it was claimed that such assignee was the proper representative of the judgment debtor,...