McKinney v. Levy

• Decision Date: 18 June 1968
• Docket Number: No. 2382,2382
• Citation: 212 So.2d 279
• Parties: James Byrum McKINNEY, Plaintiff and Appellee, v. John B. LEVY, Defendant and Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 279

212 So.2d 279

James Byrum McKINNEY, Plaintiff and Appellee, v. John B. LEVY, Defendant and Appellant.

No. 2382.

Court of Appeal of Louisiana, Third Circuit.

June 18, 1968.

John B. Levy, Baton Rouge, in pro. per.

Piccione, Piccione & Wooten, by David Hutchins, Lafayette, for plaintiff-appellee.

Before HOOD, SAVOY and CULPEPPER, JJ.

CULPEPPER, Judge.

The plaintiff, holder and owner of a promissory note, filed this suit for the sum of $3,900 due thereon. Defendant is the maker of the note. From a judgment by default rendered against him, defendant appealed.

The issue is whether the default judgment should be reversed and the case remanded to the district court for a new trial.

The record shows that suit was filed on July 18, 1967. Personal service on defendant was made on July 24, 1967. No answer or other pleadings having been filed by defendant, a preliminary judgment of default was entered by minute entry on September 7, 1967. On September 13, 1966, the court granted defendant an extension of 30 days, until October 13, 1967, within which to file an answer or other pleadings. On December 15, 1967, no answer or other pleadings having yet been filed by defendant, the judgment of default was confirmed. It was not until after proceedings were instituted to garnish defendant's wages, that he obtained an order, on February 16, 1968, for a devolutive appeal.

Defendant does not attack the judgment of default on the grounds of lack of proof or improper procedure. In his brief filed in this court, he states that he 'had defenses he desired to urge such as set-off and complete or partial failure of consideration.' He states further that he informed his attorney of these defenses, but because of inattention and neglect his attorney failed to file an answer. Defendant is himself an attorney and is prosecuting this appeal in proper person.

Defendant also states in his brief that it is a custom in Lafayette Parish 'for an attorney to warn a colleague before defaulting him,' and that defendant had a right to rely on this custom being followed.

As a general rule, the Courts of Appeal have the right to remand cases for new trial, additional evidence, etc. to prevent a miscarriage of justice. LSA-C.C.P. Articles 2082 and 2164; Washington v. Hendrix Manufacturing Company, La.App., 106 So.2d 528; Williams v. United States Casualty Company, La.App., 145 So.2d 592; Cognevich v. Brazio, 159 La. 1019, 106 So. 550. The power to remand rests within the reviewing court's discretion, but such procedure should be sparingly exercised. Texas Pipeline Company v. Johnson, 223 La. 380, 65 So.2d 884, 38 A.L.R.2d 785; Vines v. Allen, 77 So.2d 100; Whitten v. Travelers Insurance Company, La.App., 141 So.2d 40.

In support of his request that this case be remanded for a new trial, defendant cites Burthe v. Lee, La.App., 152 So. 100; City of New Orleans v. Le Bourgeois, 50 La.Ann. 591, 23 So. 542; Weinberger Sales Co. v. Truett, La.App., 2 So.2d 699; and Bell v. Holdcraft, 196 So. 379. In each of these cases there was a strong showing in the motion for a new trial or the request for remand that the defendant actually had a good defense, that this defense could be proved by substantial available evidence, that defendant had timely employed an attorney, and that it was solely due to neglect on the part of the attorney that...