Mercantile Adjustment Co. v. Powers
| Decision Date | 14 February 1927 |
| Docket Number | 10,703 |
| Citation | 5 La.App. 534 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | MERCANTILE ADJUSTMENT CO., Appellant, v. POWERS, ET AL |
Appeal from First City Court. Hon. W. Alex Bahns, Judge.
Action by Mercantile Adjustment Agency, etc., against Edward Powers et al.
There was judgment for defendant and plaintiff appealed.
Judgment reversed.
Jos. A Casey, of New Orleans, attorney for plaintiff, appellant.
Richard A. Dowling, of New Orleans, attorney for defendant, appellee.
In this case one of the defendants, Frank L. Burg, sued to annul the judgment against him.
The plaintiff, the Mercantile Agency, alleged that it was the holder of a note of $ 150.00 signed and endorsed by four defendants, viz.: Edward Powers, A. J. Doize, Frank L. Burg and Alfred Herzog, subject to a credit of fifteen dollars.
Burg was cited at his domicile in the hands of his wife, and all the three others were cited also. Judgment by default was rendered against the four defendants. Notice of judgment was served upon Burg at his domicile in the hands of his wife on January 29, 1926.
On February 26, 1926, a fieri facias was issued.
The sheriff, on May 15, 1926, garnisheed in the hands of the N O. S. S. Association whatever it might owe to the defendant, Burg. The garnishee answered that it owed Burg $ 67.50.
The defendant, Burg, then agreed with plaintiff that the amount garnisheed should be divided in the proportion of one-half to himself and one-half to the plaintiff.
On July 17, 1926, Burg filed a petition, in which he alleged all the foregoing facts; he charged that the garnishment of his wages was null and void because "the note alleged to have been signed by him was a forgery and was never signed nor endorsed by him", and he prayed that the judgment against him be annulled and for an injunction. A temporary writ was issued on a bond of $ 25.00.
On August 5, 1926, there was judgment in favor of Burg annulling the judgment against him and perpetuating the injunction against its execution. The plaintiff, the Mercantile Adjustment Agency, appealed, and we are asked to reverse the judgment.
Over the objection of the Mercantile Agency, Burg was allowed to introduce testimony in support of the allegation of his petition.
Burg testified that he had not signed the note, nor endorsed it. E. A. O'Sullivan, as an expert, testified that the name of Burg upon the face and back of the note were not in the handwriting of Burg.
Edwin Powers, brother-in-law of Burg, swore that Burg had signed the face and the back of the note in his presence. Leo Hezman, plaintiff, testified that Burg had admitted to him that he had signed and endorsed the note.
But it is not necessary for us to criticize the testimony. The law is against Burg. It has been repeatedly decided that "an injunction cannot issue to stay execution on grounds which might have been pleaded in defense before judgment". 1 H. D. 665-2-2; 1 L.D. 311-2-2; Ludeling vs. J. & C. Chaffe, 40 La.Ann. 645, 4 So. 586; Rareshide vs. Enterprise Ginning & Mfg. Co., 43 La.Ann. 820, 9 So. 642; 4 La. Dig., p. 349, S. 103.
No action lies to annul a judgment voluntarily executed. 1 H. D. 744, No. 6, 23 A. 27.
Plaintiff must show that he could not have availed himself of the matter in the former suit. If, by reasonable diligence, he could have shown such matter, or if he has been guilty of laches, he cannot be relieved. 1 H. D. 744, No. 17; Bethel vs. Hawkins, 21 La.Ann. 620; Succession of Corrigan, 42 La.Ann. 65, 7 So. 74; Warren vs. Copp, 48 La.Ann. 810, 19 So. 746; Landry vs. Bertrand, 48 La.Ann. 48, 19 So. 126; Millaudon vs. Gordon, 18 La.Ann. 280; Jouet vs. Mortimer, 29 La.Ann. 206; Moss vs. Drost, 130 La. 285, 57 So. 929; Surety Credit Co., Inc., vs. Bauer, 1 La.App. 285.
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