Woodlief v. Logan
| Decision Date | 30 May 1898 |
| Docket Number | 12,713 |
| Citation | 23 So. 716,50 La.Ann. 438 |
| Court | Louisiana Supreme Court |
| Parties | RILEY Y. WOODLIEF v. GEORGE C. LOGAN ET ALS |
Argued May 18, 1898.
APPEAL from the Civil District Court for the Parish of Orleans Rightor, J.
Rice & Montgomery, for Plaintiff (defendant in injunction) Appellee.
James McConnell, Jr., for Defendants (plaintiffs in injunction) Appellants.
Some of the sureties of George C. Logan, a subcontractor for carrying the United States mail, appeal from an adverse judgment condemning them to pay an amount on the subcontractor's bond.
The heirs and representatives of one of the sureties did not appeal from the judgment, but sued out an injunction and alleged in their petition that the judgment was null and void, for the reason that it was not read and signed by the judge in open court.
The special averment of the appellant on this point was, that during a temporary recess of the court and after the judge had left the bench, and prior to reascending the bench, without reading the judgment handed to him by plaintiff's counsel, he (the judge) handed it to the clerk with instructions to enter it upon the minutes; and that he failed to comply with the requirement: "All judgments shall be read by the judge in open court."
In the second place the averment is, that on the date the judgment bears, the presiding judge of the court was ill and unable to attend court, and that the judgment was not signed in open court.
There was, it appears, a hearing for preliminary injunction (on the application for an injunction) before another judge than the one by whom the judgment had been pronounced; the latter was at the time absent on leave.
On this hearing the judge took notice of the minutes of the Civil District Court for June 18 and June 25, 1897. They were copied in the transcript of appeal.
Entertaining some doubts as to the validity of the judgment, for reasons assigned a preliminary writ of injunction or rule nisi was issued on the application for an injunction.
The judge by whom the judgment (assailed as null) had been pronounced having returned, counsel for plaintiff interposed before his court a rule to dissolve the injunction, on the ground chiefly that the petition for injunction disclosed no legal or equitable grounds therefor.
Though other grounds were assigned in the rule to dissolve, appellants' counsel informed us in open court that he urged in the lower court, only the ground last stated.
Appellants invoke the rule well known that upon the trial of a rule to dissolve, upon the face of the papers, its averments are taken as confessed by the plaintiff in rule.
The court sustained the rule and dissolved the injunction with damages.
From the judgment the plaintiff in injunction prosecutes this appeal.
It does not appear by the entries in the minutes that the judgment was read in open court. Nor do the minutes make it appear that the judgment was signed.
The article of the Code of Practice, 543, calls for the reading of all judgments by the judge in open court.
The chief reliance of the plaintiff Woodlief, defendant in injunction, in support of his execution of the judgment assailed by plaintiffs in injunction, is upon the minutes, contradicting, he asserts, the allegations of complainants' petition, or explaining or modifying the averments of their petition, and he contends further that plaintiffs' allegations could only be sustained by parol; that the minutes can not be contradicted by parol.
He invoked the rule that only that is considered pleaded at all which is pleaded well; that upon a rule to dissolve an injunction,...
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...of agreement of the parties or their counsel, State ex rel. I.C.R. Co. v. Judges, 48 La.Ann. 905, 19 So. 932.' In Woodlief v. Logan, et al., 50 La.Ann. 438, 23 So. 716, it was held that if the judgment does not recite that it was read and signed in open court, it should affirmatively appear......
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...in open court may appear from the minutes of the court as well as from recitals on the face of the judgment itself. Woodlief v. Logan, 50 La.Ann. 438, 23 So. 716 (1898); Richardson v. Turner, 52 La.Ann. 1613, 28 So. 158 (1900); Venus v. Scannell, 3 Orl.App. 409 Finally, defendant filed in t......
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