Richardson v. Helis

• Decision Date: 01 May 1939
• Docket Number: 35221.
• Citation: 192 La. 856,189 So. 454
• Court: Louisiana Supreme Court
• Parties: RICHARDSON v. HELIS.

189 So. 454

192 La. 856

RICHARDSON v. HELIS.

No. 35221.

Supreme Court of Louisiana.

May 1, 1939

Rehearing Denied May 29, 1939.

Appeal from Civil District Court, Parish of Orleans; William H Byrnes, Jr., Judge.

Action by A. W. Richardson against William Helis to enforce a final judgment of the superior court of California, County of Los Angeles. From a judgment for plaintiff, defendant appeals.

Affirmed.

Cobb & Saunders, Lloyd J. Cobb, and Morris Wright all of New Orleans, for appellant.

Ogden & Woods and L. D. Dunbar, all of New Orleans, and John E McCall, of Los Angeles, Cal., for appellee.

HIGGINS, Justice.

The plaintiff, alleging that he is a judgment creditor of the defendant, instituted this action, praying for the recognition and enforcement, under the ‘ Full Faith and Credit Clause’ (Art. IV. Sec. I) of the United States Constitution, U.S.C.A. and the Act of Congress passed pursuant to its provisions (28 U.S.C.A. § 687), on May 26, 1790, of a final judgment of the Superior Court of the State of California, County of Los Angeles, for the sum of $10,472.75, with interest thereon at the rate of 7% per annum from October 7, 1929, until paid.

The defendant filed exceptions of no right and no cause of action and a plea of prescription of five years, which were overruled by the trial judge. With reservation of his rights under these pleas, defendant answered, averring that he was not indebted to the plaintiff and had valid defenses to his claims, and that the California judgment had been obtained by fraud extrinsic of the merits of the case, the plaintiff in that action having promised the defendant to dismiss the suit, and subsequently, after the defendant left the State, the plaintiff had the judgment entered against him by default.

The district judge held that the respondent failed to prove the alleged fraud by a preponderance of the evidence and rendered judgment in favor of the plaintiff and against the defendant, as prayed for. The defendant appealed and, in this Court, reiterates all of the defenses invoked in the court below.

The exceptions and the plea of prescription are treated jointly by counsel for both parties in their briefs and we shall deal with them in the same manner. These defenses are based upon the provisions of Sections 681 and 685 of the California Code of Civil Procedure and of Article 3547 of the Revised Civil Code of Louisiana, as amended by Act No. 278 of 1936.

Article 3547 of the Revised Civil Code of Louisiana, as amended, reads:

‘ All judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of such judgments, except that no judgment for money rendered without the State shall be enforcible in this State if it is prescribed or unenforcible under the laws of the State wherein it was rendered. Provided, however, that any party interested in any judgment rendered within or without the State and not prescribed in the State wherein rendered, may have the 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 of defendant's domicile, unless defendant or his representatives 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 said curator ad hoc the citation shall be served.

‘ Any judgment revived, as above provided, shall continue in full force for ten years from the date of the order of Court reviving the same, and any judgment may be revived as often as the party or parties interested may desire. [As amended, Acts 1936, No. 278, Art. 1.]’

Sections 681 and 685 of the Code of Civil Procedure of California provide:

‘ § 681. Within what time execution may issue. The party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement.

‘ [Time during which stayed excluded in computing time.] If, after the entry of the judgment, the issuing of execution thereon is stayed or enjoined by any judgment or order of court, or by operation of law, the time during which it is so stayed or enjoined must be excluded from the computation of the five years within which execution may issue.’

‘ § 685. In all cases the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, and after due notice to the judgment debtor accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of section 681 of this code. The failure to set forth such reasons as shall, in the discretion of the court, be sufficient, shall be ground for the denial of the motion.

‘ Judgment in all cases may also be enforced or carried into execution after the lapse of five years from the date of its entry, by judgment for that purpose founded upon supplemental proceedings; but nothing in this section shall be construed to revive a judgment for the recovery of money which shall have been barred by limitation at the time of the passage of this act.’ (As amended, St.Cal.1933, p. 2499).

Defendant argues that, as the judgment by default was entered in California on October 9, 1929, and the present proceeding was instituted on October 18, 1935, it is obvious that more than five years have elapsed since the judgment was obtained and, therefore, it was not enforceable under the California law until the supplemental proceedings required by Section 685, above quoted, were complied with and an order or judgment entered granting the judgment creditor the right to enforce the judgment against his debtor.

The plaintiff concedes, and the record shows, that these supplemental proceedings were never brought in California and contends that the provisions of Sections 681 and 685 are not applicable in the instant case, because it is admitted that the defendant left the State of California in August of the year 1929 and remained in the State of Texas until about 1932, when he moved to Louisiana, where he established his residence and domicile, in 1934, and, therefore, under the express provisions of Section 351 of the California Code of Civil Procedure, prescription was suspended and, consequently, his judgment was enforceable under the laws of California, without the necessity of any supplemental proceedings, under Section 685.

Section 351 of the California Code of Civil Procedure states:

‘ Exception, where defendant is out of the state. If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited, after his return to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action.’

In the case of Caples v. Caples, 47 F.2d 225, 226, the identical issue was presented to the United States Circuit Court of Appeals for the Fifth Circuit and it was decided that the five year prescription set forth in Section 685 of the California Code of Civil Procedure does not run while the judgment debtor is an absentee. The court, through Judge Foster, said:

‘ No question is raised as to the jurisdiction of a California court over appellant, but it is contended (1) that the judgment sought to be enforced is not a final judgment, as it was subject to amendment at any time on order of the court rendering it, and (2) that the judgment, if final, is dormant, not having been revived by the court that rendered it, and execution is barred by the lapse of five years, under the statute of limitations of the state of California, which must be given effect in Texas .

‘ There is no dispute as to the material facts. Appellant brought an action for divorce against his wife, appellee, in a California court. On cross-action by her she was awarded an interlocutory decree of divorce on February 2, 1921, and this was made final on February 6, 1922. By the decree she was awarded alimony at the rate of $150 per month for the support of herself and minor son, then about two years of age, until his majority. She was given the custody of her son, and the alimony was payable direct to her. Shortly after the decree, certainly within five years, appellant left the State of California and has not since returned . Execution issued on the judgment in California, on September 15, 1923. Thereafter on May 2, 1930, a motion for execution was filed in the California court, and that court ordered execution issued the same day in the amount of $22,000.12, the same amount as the judgment herein. The decree has never been amended. [1, 2.] Under the law of California, section 139, Civil Code of California, the court awarding alimony to the wife may from time to time modify its orders in that respect. We are not referred to any decision of the Supreme Court of California holding that the court may modify its decree as to alimony that has accrued. The following California decisions support the conclusion that it cannot do so. Cummings v. Cummings, 97 Cal.App. 144, 275 P. 245; Soule v. Soule, 4 Cal.App. 97, 87 P. 205; Rinkenberger v. Rinkenberger, 99 Cal.App. 45, 277 P. 1096. This conforms with our own interpretation of the statute, and therefore we hold that the judgment sued on was final and entitled to full faith and credit. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682; 54 L.Ed. 905, 28 L.R.A.(N.S.) 1068,20 Ann.Cas. 1061.

‘ There is no doubt that under the law of California the statute of limitations was tolled during the absence of appellant . Sections 351...