Schneckenberger v. John Bonura & Co., Inc.
| Decision Date | 17 November 1930 |
| Docket Number | 13,536 |
| Parties | SCHNECKENBERGER v. JOHN BONURA & CO., INC. |
| Court | Court of Appeal of Louisiana — District of US |
Appeal from Twenty-Fourth Judicial District Court, Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
Action by Herbert Schneckenberger against John Bonura & Co., Inc.
There was judgment for plaintiff, and defendant appealed.
Judgment affirmed.
John E Fleury, of New Orleans, attorney for plaintiff, appellee.
Arthur B. Leopold, of New Orleans, attorney for defendant appellant.
OPINION
This is a suit to enjoin execution under a judgment obtained by default. The allegations are that neither the plaintiff in injunction nor his attorney was present when the judgment in the original suit was obtained, and that their absence resulted from the fact that an agreement had been entered into between counsel for plaintiff and counsel for defendant in that suit, to the effect that counsel for plaintiff would notify counsel for defendant of the fixing of the case for trial, and that no such notice was given. It is alleged in this suit that the breach of that agreement constitutes such ill practice as is contemplated by article 607 of our Code of Practice.
On the trial of the rule for the preliminary injunction, the court below held that the allegations of the petition presented a cause of action, and that the breach of such an agreement between counsel constituted ill practice and entitled the party now complaining to an injunction preventing execution under the judgment.
It is argued on behalf of defendant in injunction that there was no fraud alleged in connection with the breach of the agreement, and that, under article 607 of the Code of Practice, it is contemplated that ill practice must be accompanied by fraud in order to entitle the complaining party to an annulment of the judgment or to an injunction against the execution thereof. We do not so construe the article nor do we so read the decisions pertinent thereto. In the case of Coltraro v. Chotin, 1 La.App. 628, we find that a judgment was annulled on the allegation that no notice of trial was given. Here, in addition to the lack of notice, we find the allegation that there was a special agreement that notice would be given.
It is further contended that failure to receive notice, or breach of an agreement to give notice, is not one of the causes specified in Code of Practice, art. 607, as entitling the complaining party to an annulment of the judgment. It has many times been held, however, that the causes specified in that article of the Code of Practice are merely illustrative and are not exclusive. Tarver v. Quinn, 149 La. 368, 89 So. 216; Succession of Gilmore, 157 La. 130, 102 So. 94; Miller v. Miller, 156 La. 46, 100 So. 45; Swain v. Sampson, 6 La.Ann. 799; Norris v. Fristoe, 3 La.Ann. 646; Coltraro v. Chotin, supra.
In fairness to counsel now representing defendant in injunction let us say that it is not alleged that the agreement as to notice was made with him, but it is alleged that it was made with his associate counsel, who had represented plaintiff in the original suit from the time that suit was filed, present counsel having associated himself in the trial of the case later.
To the petition for injunction defendant in injunction has also filed a plea of res judicata. This plea grows out of the following facts:
After the original judgment was rendered and became final execution was attempted thereunder, and thereupon a suit was filed in the district court of the parish of Jefferson seeking...
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