Chaison v. LeBlancChaison v. LeBlanc
This is an appeal from the confirmation of a default judgment. The general facts are that two elderly sisters, Tina Chaison, wife of Oscar Chaison, and Eva Douglas, wife of James A. Douglas, opened a joint savings account in 1952 in the Security
This suit was filed on September 28, 1976. The temporary restraining order was issued on October 6, 1976. No answer was filed by the defendant. On April 18, 1977, a preliminary default was taken by the plaintiffs. The plaintiffs attempted to confirm the default on July 15, 1977, but the trial court granted a continuancе rather than rule in favor of the defendant because of inadmissibility of the plaintiffs’ evidence. On November 14, 1977, plaintiffs obtained a confirmation of the default after they prеsented further evidence. Defendant timely perfected this devolutive appeal from said judgment.
The issues presented on this appeal are:
(1) whether there was sufficient evidence to prove a prima faсie case as required by
Louisiana Code of Civil Procedure, Article 1702 , and(2) whether the notice, interrogatories, answers to interrogatories, and certificates of officer at taking of interrogatories were defective, making them inadmissible evidence.
To obtain a reversal of a default judgment, the defendant must overcome the presumption that the judgment was rendered upon sufficient evidence and is correct. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (1972).
Among the evidence presented on the first effort to confirm the default were the affidavits of Oscar Chaison and Emil Weaver, Vice-Prеsident of the First Security Bank of Beaumont, Texas. Since this case is other than a suit on an open account, affidavits fail to constitute prima facie proof and аre inadmissible.
Also presented at the July 15, 1977 proceeding was the testimony of James Douglas, who is one оf the plaintiffs. The trial court correctly ruled that vital parts of his testimony were hearsay and inadmissible. The testimony of James Douglas, therefore, fails to support the plaintiffs’ claim.
The defendant argues that the answers of Tina Chaison and Emil Weaver to the interrogatories propounded to them should not serve as a basis for the confirmatiоn of the default judgment because the record fails to reflect any of these items were offered and received as evidence. We hold to the contrary.
The minutеs of the trial court reflect that further evidence was submitted to the court on the second confirmation proceeding (Record, Pg. 4). The certificate of the Clerk оf Court certifies that the record consists of forty-seven pages and is a true and complete record of all the minutes, pleadings and evidence introduced. Includеd in those forty-seven pages are the interrogatories and answers thereto by Tina Chaison and Emil Weaver. The only other evidence found therein was received at thе first confirmation proceeding. Our conclusion is that the interrogatories and answers were offered and received as “further evidence” at the second hearing.
Thе defendant argues that if we find that the interrogatories and answers were
First, the defendant calls our attention to a defect in the notice given to defendant of interrogatories to Tina Chaison and Emil Weaver. In the notice, the defendant was advised that she had five days in which to file counter-interrogatories. The defendant now points out that this was a misstatement of the law since
The defendant also argues that she was not given the full time allotted by the law, thirty days, to make сross-interrogatories because the interrogatory to Emil Weaver was mailed July 19, 1977, and execution of the answers was made on August 17, 1977, a period of twenty-nine days. For the samе reasons as above, we find that this fails to constitute reversible error on the part of the trial court in allowing the interrogatories and answers to support the confirmаtion. Additionally, we point out that the defendant had the full benefit of the thirty days to seek counter-interrogatories against Tina Chaison and failed to do so.
The defendant next contends that the depositions were not properly certified by the Texas notary before whom Tina Chaison and Emil Weaver were sworn and answered the interrogatoriеs.
“Errors and irregularities in the manner in which the testimony is transcribеd or a deposition is prepared, signed, certified. . . or otherwise dealt with by the officer under Code of Civil Procedure Articles 1437-1449 are waived unless a motion to suppress the deposition or some parts thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.”
In the present case, defendant filed no motion to suppress the depositions which were filed in the record respectively on August 22, 1977 and on October 4, 1977. With due diligence, the defendant had ample time to discover the defect in the certification and file a motion to suppress the deposition before the default judgment was finally obtained on November 14, 1977. Thus, we hold that the defendant waived the objection to the deficiency in the notary‘s certificate.
In accordance with the foregoing, we hereby reverse the judgment of the trial court insofar as it awarded to Oscar Chaison an interest in the funds in dispute, and set aside that portion of the said judgment; in all other respects, the judgment of the trial court is affirmed.
All costs of this appeal are assessed against defendant.
AFFIRMED IN PART AND REVERSED IN PART.