Succession of Moody

• Decision Date: 16 December 1974
• Docket Number: No. 10042,10042
• Parties: Succession of Annie Laurie Roumain MOODY.
• Court: Court of Appeal of Louisiana — District of US

Page 869

306 So.2d 869

Succession of Annie Laurie Roumain MOODY.

No. 10042.

Court of Appeal of Louisiana, First Circuit.

Dec. 16, 1974.

Rehearing Denied Feb. 10, 1975.

Writ Refused April 11, 1975.

Joseph A. Gladney, Baton Rouge, for Ben Roumain Succession.

L. Michael Cooper and Victor A. Sachse, Baton Rouge, for defendant-appellee Thomas Franklin Moody.

Bailey E. Chaney, Baton Rouge, for Mrs. Yvonne Roumain Smith.

Before LOTTINGER, COVINGTON and BAILES, JJ.

COVINGTON, Judge:

This appeal from a judgment taxing as costs against the defendant in rule, Succession of Benjamin Roumain, certain expert witness fees is yet another phase of the lengthy litigation thus far arising from the Succession of Annie Laurie Roumain Moody. Prior appellate litigation is to be found in the following reported decisions: Succession of Moody, 227 La. 609, 80 So.2d 93 (1955); Succession of Moody, 229 La. 30, 85 So.2d 20 (1955); Succession of Moody, La.App., 149 So.2d 719 (1 Cir. 1963), and Succession of Moody, 245 La. 429, 158 So.2d 601 (1963).

This litigation commenced when the validity of the last will of Annie Laurie Roumain Moody naming her husband, Thomas Franklin Moody, her universal legatee was attacked by Benjamin Roumain, her uncle. The grounds of the attack were that the will was a forgery and the testatrix lacked testamentary capacity. The attack was unsuccessful. The judgment of the trial court upholding the will and casting all costs against Benjamin Roumain was affirmed by the Supreme Court. See Succession of Moody, 227 La. 609, 80 So.2d 93 (1955).

Thereafter, Thomas Franklin Moody, who had been the successful litigant, filed a rule to tax costs against Benjamin Roumain and the surety on the cost bond and the appeal bond put up in the suit. The trial of the rule on its merits resulted in a judgment on May 27, 1960, in favor of the plaintiff in rule. However, while the matter was under submission to the court for a decision, Benjamin Roumain, the principal, died on November 9, 1958. The death of the principal necessitated an amendment in the judgment on the rule to the effect that costs were taxed against the surety alone, limited to the amount of his responsibility under both bonds. The amended judgment reserved all rights of the plaintiff in rule against the succession of Benjamin Roumain. On appeal, the Court of Appeal reduced the judgment to the amount of the appeal bond for the reason that the appeal bond had superseded the cost bond. See Succession of Moody, La.App., 149 So.2d 719 (1 Cir. 1963).

The supreme Court granted certiorari limited to the question 'whether a judgment could be granted against a surety on an appeal bond without a showing that all remedies had been exhausted against the principal or his estate.' Holding that the plaintiff in rule first had to exhaust his remedies against the principal or his estate, the Supreme Court remanded the case for proper substitution of the legal representative of the succession of Benjamin Roumain, acknowledging that 'all of the rights of Thomas Franklin Moody against the Succession of Benjamin Roumain were reserved.' See Succession of Moody, 245 La. 429, 158 So.2d 601 (1963).

Pursuant to this order, the plaintiff in rule filed a motion for substitution in the rule to tax costs and caused the motion to be served on Yvonne Roumain Smith, the sole heir of Benjamin Roumain. The Succession of Benjamin Roumain has been cited to appear in accordance with law and has been represented by counsel at all stages of these proceedings. See LSA-C.C.P. Arts. 801--804.

During the course of the instant proceedings, two procedural questions were raised which must be answered. First, has the rule to tax costs been abandoned for five-years' non-prosecution? Second, was the prior basic judgment dismissing the attack upon the last will of Annie Laurie Roumain Moody and casting all costs against Benjamin Roumain a money judgment which prescribed for ten-years' non-revival?

The first question is whether the rule to tax costs should be dismissed on the ground of abandonment for failure to prosecute the cause during a five-year period, pursuant to LSA-C.C.P. Art. 561 (formerly LSA-C.C. 3519).

The pertinent portion of Article 561 of the Code of Civil Procedure provides:

'An action is abandoned when the parties fail to take any steps in its prosecution or defense in the trial court for a period of five years.'

This article has been judicially interpreted as calling for the certainty of some formal action in the judicial proceeding itself, which is intended to hasten the suit to judgment, as necessary to interrupt the running of the five-years' inaction. See Sliman v. Araguel, 196 La. 859, 200 So. 280 (1941).

Defendant in rule's position is that the rule was abandoned since no step was taken by the plaintiff in rule to prosecute the rule from November 9, 1958 (the date of the death of Benjamin Roumain) until May 1, 1964 (the date of the motion for substitution of the legal representative of the Succession of Benjamin Roumain).

There is no basis for defendant in rule's position. The minutes of the trial court show that several actions were taken in the instant proceedings during the alleged period of inactivity. We need direct our attention for the moment but to one such action. There is a motion filed by the plaintiff in rule in the instant proceedings on June 21, 1960, which had the effect of interrupting the running of the five-year period of inactivity. This motion alleged the death of Benjamin Roumain as having occurred in November, 1958, and prayed for judgment against the surety alone. In the said motion the plaintiff in rule moved that all his rights against the succession of Benjamin Roumain be reserved to him. This motion was filed after the trial court's written reasons for judgment, in which judgment was rendered against both the principal and the surety. These written reasons for judgment were signed and filed on May 27, 1960. When the judgment was signed on June 21, 1960, plaintiff in rule's motion was granted, specifically reserving his rights against the succession of Benjamin Roumain. We believe that this motion was a formal action in the judicial proceeding itself for the purpose of hastening the instant proceedings to judgment. See Watt v. Creppel, La.App., 67 So.2d 341 (Orl.1953); Evergreen Plantation, Inc. v. Zunamon, La.App., 272 So.2d 414 (2 Cir . 1973); see also Note, Abandonment of Suit, 26 La.L.Rev. 719 (1966) .

It is also contended on this question that the rule to tax costs can not be considered for the purposes of interrupting the running of the five-year period of inactivity, because the judgment rendered against the surety was annulled by the Supreme Court.

This issue was dealt with in the case of Wilson v. King, 233 La. 382, 96 So.2d 641 (1957), wherein the plaintiff had filed suit on October 2, 1940, and obtained a money judgment by default on November 11, 1940. When the plaintiff brought suit to revive the 1940 judgment on June 26, 1950, the defendant defended the action on the ground that he had not been legally cited in the original action. On appeal the court, finding that the defendant had not been legally cited, dismissed the action for revival and declared the default judgment in the original action to be a nullity. Thereafter, the plaintiff obtained personal service on the defendant in the original action on November 10, 1955 . The defendant filed a plea of abandonment, protesting that more than five years had elapsed since the taking of any 'valid' step in the prosecution of the suit.

The Supreme Court, in overruling the plea of abandonment, said:

'It is apparent from the facts in this case that this article of the Civil Code (now LSA-C.C.P. Art. 561) is not applicable. It would indeed be unreasonable to apply this article where the plaintiff has done everything in his power to recover under his suit . It is obvious from a reading of the article itself that it was meant to apply to a situation where suit was filed and no steps were taken for five years, but it was never intended to apply to a case where a suit was prosecuted to final judgment even though that judgment was afterwards set aside.'

We agree with the trial court that the plaintiff in rule made every reasonable attempt to prosecute and recover in his suit against Benjamin Roumain and his surety. The law does not strictly insist that a party take a 'right' step in order to maintain the viability of his suit. He is only required to take an 'active' step in the judicial proceeding itself aimed at moving the suit along toward a judgment. See authorities collected in Comment, The Abandonment of a Suit--Its Effect on Prescription, 22 Tul.L.Rev. 504, 508 (1948).

Perhaps it should be added that the presumption of abandonment is not conclusive. A party is excused from its application if he can show that his failure to prosecute was due to circumstances beyond his control. See Burke v. State Farm Mutual Automobile Insurance Co ., La.App., 234 So.2d 432 (1 Cir. 1970). Such circumstances do exist in the instant proceedings. The rule to tax costs had been submitted to the trial court prior to the death of Benjamin Roumain.

Where a case has been submitted to the court for decision, Article 561 of the Code of Civil Procedure is inapplicable to either party to the action, because the delay is attributable to the court rather than the parties. Pertinent is the expression of the Court in Barton v. Burbank, 138 La. 997, 71 So. 134 (1916), as follows:

'But, we are of the opinion that, having submitted their case to the judge, they should not be held responsible for his delay in the discharge of his duty; the idea of the statute being merely to hold a plaintiff responsible for delay attributable to his nonaction in and failure to prosecute his suit up to the point at which the court is placed in a position to render judgment.'

See also Bryant v. Travelers Insurance Co., La., 288 So.2d...