Sandfield Oil & Gas Co. v. Paul

• Decision Date: 02 March 1942
• Docket Number: 6428.
• Citation: 7 So.2d 725
• Parties: SANDFIELD OIL & GAS CO., Inc., v. PAUL.
• Court: Court of Appeal of Louisiana — District of US

7 So.2d 725

SANDFIELD OIL & GAS CO., Inc., v. PAUL.

No. 6428.

Court of Appeals of Louisiana, Second Circuit

March 2, 1942

Rehearing Denied April 3, 1942.

Appeal from Eleventh Judicial District Court, Parish of Sabine; Hal A. Burgess, Judge.

Cawthorn & Golsan, of Mansfield, for appellant.

Craig & Magee, of Mansfield, and C.J. Bolin, of Shreveport, for appellee.

DREW, Judge.

This is a suit to annul and set aside a judgment in favor of plaintiff in the suit of T.J. Paul v. Sandfield Oil & Gas Company Inc., No. 11,814 on the docket of the Eleventh Judicial District Court of Sabine Parish, Louisiana, for the sum of $375, with 5% per annum interest thereon from judicial demand until paid less a credit of $75. Plaintiff here alleged that T.J. Paul took no steps in the prosecution of the suit from January 15, 1934, until June 12, 1939, and therefore allowed more than five years to elapse without taking any steps in the prosecution of said suit, therefore abandoning it.

Defendant filed exceptions of no cause and no right of action which were tried and overruled by the lower court. In answer defendant denied the allegations of plaintiff's petition except insofar as they are sustained by the court's records.

The case was submitted on the record which consists of all pleadings and the minutes of the court. The lower court rendered judgment for plaintiff as prayed for and defendant is prosecuting this appeal.

Plaintiff appellee, has filed a motion here to dismiss the appeal. The motion is based on the following allegations of fact:

That the judgment was rendered below on February 17, 1941, at which time an order for a devolutive appeal was granted defendant returnable to this court on or before April 1, 1941; that this appeal was not perfected and no extension of time prayed for or granted; and that on July 16, 1941, defendant by petition applied for and was granted a devolutive appeal which was made returnable here on August 15, 1941, which appeal was perfected.

It is appellee's contention that appellant abandoned and therefore lost his right to an appeal by failure to perfect the devolutive appeal granted him on February 17, 1941. It relies on Article 594 of the Code of Practice, which reads as follows:

"Withdrawal of appeal after citation of appellee prohibited--Abandonment.--From the moment when the citation of appeal is served on the appellee, the appellant can not withdraw his appeal; and whether the appellee obtain the rejection of the appeal by producing the record from the court below, or prosecute execution on the judgment appealed from, on the certificate of the clerk that the record has not been brought up by the appellant, the appeal shall be considered as abandoned, and the appellant shall not be afterward allowed to renew it."

Plaintiff's contention might have merit under the earlier jurisprudence of this State, to-wit: Brickell v. Conner, 10 La.Ann. 235; Jenkins v. Bonds, 3 La.Ann. 339; Sterling v. Sterling's Heirs, 35 La.Ann. 840; but under the later jurisprudence it is without merit. This court and the Supreme Court have held to the contrary, to-wit, that appellant can secure as many orders of devolutive appeal as he desires within the twelve months after judgment where he has not attempted to perfect a prior order by filing bond. The appeal cannot be perfected without filing a bond and there is no way to abandon something which has never existed. Horton v. Western Union Tel. Company, La.App., 200 So. 44; Marine Oil Company, Ltd., v. Cutler Bros. Inc., La.App., 179 So. 485; Police Jury of St. James Parish v. Borne et al., 192 La. 1041, 190 So. 124; Vacuum Oil Company v. Cockrell, 177 La. 623, 148 So. 898; Lafayette et al. v. Farr et al., 162 La. 385, 110 So. 624; Buillard v. Davis, 195 La. 684, 179 So. 273.

The motion to dismiss the appeal is therefore overruled.

Appellant seriously contends here that the lower court erred in overruling his exceptions of no cause and no right of action. He contends that the only causes for declaring a judgment a nullity are set forth in Articles 606, 607, and 608 of the Code of Practice, plus the two additional grounds added by the jurisprudence of this State, viz.: (1) That it would be against good conscience to execute the judgment sought to be annulled because the party against whom said judgment was rendered could not in the former suit have availed himself of the matter set up for nullity; and (2) that it would be against good conscience to execute the judgment sought to be declared null because the party against whom it was rendered was prevented by fraud or accident from setting up the matter relied on for nullity as a defense to the former suit.

Defendant contends that plaintiff has failed to set forth any one of the above related causes for nullity in the present suit. The articles of the Code of Practice above referred to provide as follows:

"606. Vices of form.--The vices of form for which a judgment can be annulled are the following:

"1. If a judgment has been rendered, even contradictorily, against a person disqualified by law from appearing in a suit, as a minor without the assistance of his curator or tutor, or a married woman without the authorization of her husband or of the court;

"2. If the defendant, although qualified to appear in a cause, have been condemned by default, without having been cited;

"3. When the judgment, though clothed with all the necessary formalities, has, nevertheless, been given by a judge incompetent to try the suit, either owing to the amount in dispute, or to the nature of the cause;

"4. If the defendant has not been legally cited, and has not entered appearance, joined issue, or had not a regular judgment by default taken against him."

"607. Fraud or improper practices resorted to in obtaining judgment.--A definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud, or other ill practices on the part of the party in whose favor it was rendered; as if he had obtained the same by bribing the judge or the witnesses, or by producing forged documents, or by denying having received the payment of a sum, the receipt of which the defendant had lost or could not find at the time, but has found since the rendering of the judgment."

"608. Courts in which nullity demandable.--The nullity of judgment may be demanded from the same court which has rendered the same, or from the court of appeal before which the appeal from such judgment was taken, pursuant to the provisions hereafter expressed."

The courts of this State have often held that the right to annul a judgment is not restricted to the causes enumerated by the above articles of the Code of Practice and that the causes there enumerated are only illustrative. Vinton Oil & Sulphur Company v. Gray, 135 La. 1049, 66 So. 357; Hanson v. Haynes, La.App., 170 So. 257; Engeran v. Consolidated Companies, Inc., La.App., 147 So. 743; Frank v. Currie, La.App., 172 So. 843; Succession of Gilmore, 157 La. 130, 102 So. 94.

In Engeran v. Consolidated Companies, Inc., supra , the Court said the following:

"The fact is that our courts, from the earliest decisions, would not limit relief for the annulment of judgments to the specifically enumerated causes mentioned in article 607, C.P., but have been guided by the general principles applied by the equity courts of other states, and have invariably afforded relief where the enforcement of a judgment would be unconscientious and inequitable.

"The judgment appealed from also declares that the judgment in favor of the Consolidated Companies was annulled on the ground of 'error.' The court gave no reasons for its finding and the 'error' mentioned had reference, as we take it, to the probability of a misunderstanding between the attorneys about what was really the conditions of the agreement entered into between them.

"From the long acquaintance of the court, the writer in particular, with the two counsel, we think, that a misunderstanding led to the result which brought about this litigation. Though such error caused by the misunderstanding cannot be literally characterized as an 'accident,' referred to in the decisions above cited, the result was, however, the same to plaintiff who happened to be the innocent victim thereof, and which he could not have averted by the exercise of the utmost diligence or vigilance, and was therefore entitled to the annulment of the judgment, as was decreed below."

In Succession of Gilmore, supra, the Court said:

"The main question submitted for consideration, under an exception of no cause of action, is whether the allegations in the petition, if taken as true, form a sufficient basis for an action of nullity under article 607 of the Code of Practice which provides that:

" 'A definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud or other ill practices on the part of the party in whose favor it was rendered; as if he had obtained the same by bribing the judge or the witnesses, or by producing forged documents, or by denying having received the payment of a sum, the receipt of which the defendant had lost or could not find at the time but has found since the rendering of the judgment.'

"It is true that said petition does not charge 'fraud' or the ill practices specifically enumerated in the article of the Code of Practice above cited. The remedy given by said article to annul judgments, however, is not restrictive. The courts of this state will not hesitate to afford relief against judgments, irrespective of any issue of inattention or neglect, when the circumstances under which the judgment is rendered show the deprivation of legal rights of the litigant who seeks relief, and when the...