Southwest Sales and Mfg. Co., Inc. v. Delta Exp., Inc.

• Decision Date: 31 January 1977
• Docket Number: No. 5785,5785
• Citation: 342 So.2d 281
• Parties: SOUTHWEST SALES AND MANUFACTURING COMPANY, INC., Plaintiff-Appellant, v. DELTA EXPRESS, INC. and D. E. Lester, Jr., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 281

342 So.2d 281

SOUTHWEST SALES AND MANUFACTURING COMPANY, INC., Plaintiff-Appellant, v. DELTA EXPRESS, INC. and D. E. Lester, Jr., Defendants-Appellees.

No. 5785.

Court of Appeal of Louisiana, Third Circuit.

Jan. 31, 1977.

Rehearing Denied March 2, 1977.

Writ Refused April 26, 1977.

Glenn E. Walker, Sutton, Burnett, Harrison & Walker, Shreveport, for plaintiff-appellant.

Charles W. Seaman, Natchitoches, for defendants-appellees.

Before HOOD, CULPEPPER and GUIDRY, JJ.

GUIDRY, Judge.

Plaintiff appeals from a judgment which rejects its demand for nullity of a judgment of the Tenth Judicial District Court dated February 5, 1976 rendered in proceedings entitled Southwest Sales & Manufacturing Co., Inc., versus Delta Express, Inc., et al. Number 40660 of the docket of that court.

In order to fully understand the nature of this proceeding and the issues raised, a review of the history of this and related litigation between these same parties is essential.

On November 13, 1974, Southwest Sales and Manufacturing Company, Inc. (hereafter referred to as 'Southwest') filed suit against Delta Express, Inc., and D. E. Lester, Jr. (hereafter collectively referred to as 'Lester') on a promissory note executed by the latter in favor of the former. The suit referred to bears docket number 40660 of the Tenth Judicial District Court of Louisiana. On February 3, 1975 judgment was rendered in said suit condemning Lester to pay to Southwest the principal sum of $6000.00. Following rendition of this judgment Southwest caused a writ of fieri facias to issue which directed the Sheriff of Natchitoches Parish to serize and offer for sale certain property belonging to Lester. Before execution could be had under said writ Lester filed a petition under the same docket number, i.e., No. 40660, seeking a judgment declaring the judgment of February 3, 1975 to have been extinguished by payment and/or accord and satisfaction; a restraining order directed to Southwest and the Sheriff of Natchitoches Parish prohibiting further action under the writ of fi fa previously issued; a preliminary injunction in the form and substance of the temporary restraining order; and, a permanent injunction. Upon Lester furnishing bond in the amount of.$1000.00 the restraining order was issued together with a rule ordering Southwest and the Sheriff to show cause on October 16, 1975 why the preliminary injunction should not issue. On the latter date a hearing was had which resulted in rendition of a judgment dissolving the previously issued restraining order and denial of the preliminary injunction. This judgment, which was signed October 30, 1975, also declared the judgment of February 3, 1975 good and valid, subject, however, to a credit of $1043.35 and ordered the Sheriff to proceed with execution of the writ. This latter judgment which forms the basis for plaintiff's demand of nullity reads in pertinent part as follows:

'IT IS ORDERED, ADJUDGED AND DECREED that:

I. The Temporary Restraining Order previously granted herein is vacated and set aside;

II. The Preliminary Injunction prayed for by the original defendant and plaintiff-in-rule, D. E. Lester, Jr., is hereby denied at his costs;

III. The Judgment in the above captioned cause of action of February 3, 1975, is hereby deemed and adjudged good, valid, and therefore enforceable, subject to a credit in favor of the defendant, Delta Express, Inc. and D. E. Lester Jr., in the sum of $1,043.35.

IV. The Sheriff of Natchitoches Parish is hereby ordered to re-advertise and subsequently set for sale that certain immovable property belonging to the defendant, D. E. Lester, Jr., originally set for sale on October 8, 1975.' (Emphasis ours)

No appeal from this judgment was taken by Lester. The record does not indicate what action the Sheriff of Natchitoches Parish took following rendition and signing of the October 30, 1975 judgment.

On December 2, 1975 on motion of Lester a preliminary judgment of default was entered against Southwest in suit number 40660. Thereafter on January 13, 1976, no answer or other responsive pleadings having been filed by Southwest ¹, Lester proceeded to confirm the preliminary default previously entered. As a result of this latter hearing the trial judge rendered and signed a judgment dated February 5, 1976 in favor of Lester and against Southwest and the Sheriff of Natchitoches Parish declaring the earlier judgment dated February 3, 1975 in favor of Southwest to have been legally extinguished. This judgment reads in pertinent part as follows:

'IT IS ORDERED, ADJUDGED AND DECREED that the preliminary default herein entered on the 2nd day of December, 1976, be, and it is hereby confirmed, and made final and that there be judgment herein in favor of petitioners, D. E. Lester Jr. and Delta Express, Inc., and against the defendants, Southwest Sales & Manufacturing Co., Inc ., and Sam H. James, Sheriff of Natchitoches Parish, Louisiana, decreeding defendants judgment of February 3, 1975, against petitioner in the amount of $6000.00, legally extinguished, and canceled.'

Southwest did not appeal from the judgment of February 5, 1976. It is this latter judgment which Southwest seeks to have declared a nullity. The trial court dismissed Southwest's demand of nullity and this appeal followed.

Under LSA-C.C.P. Article 2001 the nullity of a final judgment may be demanded for vices of either form or substance as provided in Articles 2002 through 2006. Appellant contends that the judgment of February 5, 1976 is null because it is an invalid default judgment (LSA-C.C.P. Article 2002(2)).

In seeking reversal of the trial court judgment which dismissed its petition for nullity of judgment, Southwest contends as follows:

(a) The judgment of October 30, 1975 which rescinded the restraining order, denied the preliminary injunction, and recognized and declared the judgment of February 3, 1975 good and valid is a final judgment leaving no issue or claim extant on which a preliminary default judgment could be rendered;

(b) the judgment of October 30, 1975 is res judicata;

(c) the trial court having previously determined by its judgment of October 30, 1975 that the judgment of February 3, 1975, had not been extinguished by payment or otherwise but rather was only subject to a credit of $1043.35, was not at liberty to reverse its prior holding because of the 'law of the case' doctrine enunciated in Keller v. Thompson, 132 So.2d 395 (La.App.3rd Cir. 1961) writ refused January 15, 1962; and,

(d) the preliminary default judgment entered January 13, 1976 is invalid because, although no formal answer or other responsive pleadings were filed to Lester's petition for declaratory judgment etc., the transcript of proceedings conducted on rule for the preliminary injunction constituted a verbal denial of the allegations of the petition.

We first address ourselves to appellant's contention that the judgment of October 30, 1975 was a final judgment and therefore res judicata.

LSA-C.C.P. Article 1841 provides as follows:

'A judgment is the determination of the rights of the...