Mitchell, to Use of Tartt v. Louisiana Indus. Life Ins. Co.

• Decision Date: 13 December 1943
• Docket Number: 37304.
• Citation: Mitchell, to Use of Tartt v. Louisiana Indus. Life Ins. Co., 16 So.2d 458, 204 La. 855 (La. 1943)
• Court: Louisiana Supreme Court
• Parties: MITCHELL, to Use of TARTT, v. LOUISIANA INDUSTRIAL LIFE INS. CO., Inc.

16 So.2d 458

204 La. 855

MITCHELL, to Use of TARTT, v. LOUISIANA INDUSTRIAL LIFE INS. CO., Inc.

No. 37304.

Supreme Court of Louisiana

December 13, 1943

Charles J. Mundy, of New Orleans, for relator.

Harry R. Cabral, of New Orleans, for respondents.

ODOM Justice.

On December 2, 1930, judgment was rendered, read, and signed in the First City Court of the City of New Orleans, in favor of Edward W Mitchell and against the Louisiana Industrial Life Insurance Company, Inc., for $280, with interest and all costs.On December 5, following, which was within the delays allowed by law, the defendant insurance company filed a motion for a new trial.

On April 27 1938, Edward W. Mitchell, by written instrument, assigned sold, and delivered the judgment to Jemima Clay Tartt for a valuable consideration, and on the following day Jemima Clay Tartt filed this written assignment in the First City Court and prayed that she be substituted as plaintiff in the case.By formal judgment the court recognized the transfer and substituted Mrs. Tartt as plaintiff.

Up to that time no action had been taken on the motion for a new trial which had been timely filed on December 5, 1930.But on May 3, 1938, the motion for a new trial was called up, and a hearing on the motion was fixed for May 9, 1938, and on the latter date the judge overruled the motion for a new trial.On May 13, or four days later, the judge on his own motion, in open court when counsel were not present, set aside his previous ruling refusing a new trial, and then and there ordered a new trial of the case.But no further trial of the case was ever had.

In his application for writs, counsel for relator alleged, and this is not denied, that on several occasions plaintiff, relator here, ruled the defendant to show cause why the order issued by the judge on May 13, 1938, granting a new trial, should not be set aside, and that these rules were called up for hearing and discharged by the court.It is further alleged and not denied that the plaintiff, relator here, applied to the clerk of the First City Court for the issuance of a writ of fieri facias, and that the clerk refused to issue the writ for the reason, as stated by him, that a new trial had been granted in the case.Thereupon application was made to this court for writs, which were granted.

Relator's contention is that the order issued by the judge on May 13, 1938, granting a new trial, was null, void, and of no effect for the reason that the judge was not then vested with power and authority under the law to recall and set aside, ex proprio motu, his judgment of May 9.

This contention is well founded and must be sustained.Courts may, within the time prescribed by law, ex officio direct a new trial.Code of Practice, Article 547.

A party who believes himself aggrieved by the judgment given against him may, within three judicial days after such judgment has been rendered, pray for a new trial.Code of Practice, Article 558;ActNo. 10 of 1926.The settled rule is that the judge may, on his own motion, set aside a judgment rendered by him within the same delays, but cannot do so later.In the case of State ex rel. Shreveport Cotton Oil Co. v. Blackman, Judge, 110 La. 266, 34 So. 438, 439, this court said:

'So far as granting the new trial was concerned, that might have been done, within the legal delays, by the Judge ex proprio motu.He has, within such delays, such control of the judgment that, if satisfied of an error committed, he may, with or without a formal motion for new trial having been filed by the party cast, direct the judgment he has rendered set aside and a new trial ordered.'(CitingGayle v. Kemper's Heirs, 10 La. 205, 209;State v. Judge, 8 La.Ann. 89, 93;Underwood v. Lacapere, 10 La.Ann. 766;Culverhouse v. Marx, 38 La.Ann. 667.)

In the much later case of Iberville Bank & Trust Co. v. Zito, 169 La. 421, 125 So. 435, 436, this court said:

'The court, in its sound discretion within the legal delays, may even grant a new trial ex proprio motu.Within such delays, the judge has control of the judgment, and, if he is satisfied that an error has been committed, he may, with or without a formal application on behalf of the party cast, set aside the judgment and order a new trial.'(CitingState ex rel. Shreveport Cotton Oil Co. v. Blackman, Judge, supra.)

The judge and the defendant insurance company answered the rule to show cause issued by us but cited no law to the...