Robinson v. Zor, Inc.

• Decision Date: 05 April 1965
• Docket Number: No. 1779,1779
• Citation: 174 So.2d 154
• Parties: Regina ROBINSON v. ZOR, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 154

174 So.2d 154

Regina ROBINSON v. ZOR, INC.

No. 1779.

Court of Appeal of Louisiana, Fourth Circuit.

April 5, 1965.

Rehearing Denied May 3, 1965.

Walter R. Fitzpatrick, Jr., New Orleans, for plaintiff-appellee.

Favret, Favret & Favret, Clarence F. Favret, Jr., New Orleans, for defendant-appellant.

Before REGAN, SAMUEL and HALL, JJ.

HALL, Judge.

The defendant, Zor, Inc., prosecutes this devolutive appeal from a judgment on the merits annulling a tax sale, to it, and also from the Trial Court's denial of a new trial. Plaintiff answered the appeal praying for damages for frivolous appeal.

Plaintiff, Regina Robinson, as owner of certain lots in the City of New Orleans, filed suit on November 2, 1962 against Zor, Inc. to set aside a tax title to the lots which defendant had acquired at a City tax sale for delinquent taxes for the year 1957 on the ground that no notice of the sale was given as required by law.

The record reveals that plaintiff acquired the property as widow in community and as sole heir of her late husband, Daniel Robinson, who acquired the property in 1916. The record further reveals that the property was assessed in the name of Daniel Robinson and continued to be assessed in his name even after his death on January 5, 1934, and was so assessed at the time of the tax sale complained of.

The record further reveals that no notice of the sale as required by law was ever sent to anyone as an heir of Daniel Robinson. The only notice of delinquency sent out by the City was a notice addressed and mailed to the deceased, Daniel Robinson, which was returned unclaimed. The record on the merits fully substantiates the judgment annulling the sale. See Blythe v. Zor, Inc., La.App., 148 So.2d 832.

Neither in argument nor in its brief has appellant discussed the merits of the case, nor has appellant suggested that it was in possession of any facts which would tend to defeat the suit. Its complaint is that it has not had its 'day in court', in that neither it nor its counsel was present at the trial.

Appellant's contends (a) that proper notice of trial was not given to it; (b) that proper notice of the signing of judgment was not given to it thus defeating its right to a new trial and its right to a suspensive appeal, and (c) that the judgment annulling the tax sale does not require the repayment of taxes as required by law.

The facts shown by the record are as follows:

On November 12, 1962 Alcide J. Weysham filed interrogatories to be answered by plaintiff, signing same 'Alcide J. Weysham, attorney of defendant Zor, Inc.'

On November 19, 1962 'Alcide J. Weysham, attorney for Zor, inc.' signed and filed a motion for bond for costs.

On June 10, 1963 answer to the suit was filed bearing the signatures 'Alcide J. Weysham. Delvaille H. Theard (T. A.) attorneys of defendant.'

Delvaille H. Theard died in October 1963.

On December 3, 1963 notice of a pre-trial conference to be held on January 29, 1964 was mailed to Alcide J. Weysham in accordance with the rules of the Civil District Court. He failed to appear or to excuse his absence.

The matter was set by the court for trial on the merits on March 19, 1964 and it is conceded that notice of the trial date was published according to the rules of court several weeks prior thereto. No other notice is required by law or rule of court. Prior to the trial date counsel for plaintiff, although not required by law or the rules of court to do so, directed to Mr. Warren Doll, president of Zor, Inc., two letters notifying him of the date of the trial. The letters were duly mailed and were not returned to the sender, and appellant does not claim they were not received.

On the date set for trial no one appeared for the defendant and plaintiff's counsel proceeded to put on his proof. At the close of the evidence the Trial Judge rendered judgment instanter in open court without taking the matter under advisement. Judgment was signed in open court.

On the date of the trial Alcide J. Weysham was alive and had never withdrawn from the case. He was still attorney of record for defendant. Defendant-appellant's present counsel took notice of this when on April 3, 1964 they filed a motion to be made attorneys of record 'in lieu and in place of Delvaille H. Theard and Alcide J. Weysham as attorneys for defendant.'

And on April 3, 1964, long after the time for applying for a new trial had passed, defendant's present counsel filed a rule for a new trial to be heard on April 17, 1964. When the rule came on for trial defendant's counsel made no appearnce and the rule was dismissed. Thereafter on April 22 defendant's counsel filed a second rule for a new trial stating that he had been misinformed as to the date of the hearing on the first rule. The second rule was fixed for trial on May 1 and after a hearing thereon the Court dismissed it.

We find no error in the proceedings. Mr. Weysham was counsel of record for defendant, and later co-counsel of record, throughout the entire proceedings until superceded on April 3, 1964, at which time judgment on the merits had already been rendered and the delay for applying for a new trial had already expired....