91 So. 288 | La. | 1922
Lead Opinion
Plaintiff sues to revive a judgment, and defendant pleads the prescription of 10 years provided for in article 354 f of the Code, reading in part:
“All judgments for money * * * shall be prescribed by the lapse of ten years from the rendition of such judgments. Provided, however, that any party interested in any judgment may have the same revived at any tíme before it is prescribed, by having a citation issued according to law, to the defendant
Plaintiff’s demand, in tlie suit in which the judgment sought to he revived was rendered was for a very large amount. It was rejected by the district court, except to the extent of $2,974.67, by a judgment signed on January 27, 1906. Plaintiff appealed to the Supreme Court, and that court increased the allowance to $9,9-12.37 by a judgment handed down on January 7, 1907. A rehearing was applied for by defendant. It was refused on February 4, 1907. While refusing this rehearing, this court corrected an error of calculation which had crept into the judgment, whereby the judgment was reduced to $8,-809.70. It. is this judgment plaintiff seeks to revive.
The citation in the suit for revival was served on defendant on January 15, 1917.
The judgment sought to be revived may be said to have existed as to $2,974.67 of it from the time judgment was rendered in favor of plaintiff for that amount by the district court; but it did' not exist for any excess over that amount until judgment was rendered by this court on January 7, 1907. Now, as prescription cannot possibly run on a judgment until it exists, the plea of prescription is clearly not applicable to that part of the judgment constituting this excess. That point was decided in the case of Scott v. Seelye, 39 La. Ann. 749, 2 South. 309, where the court said:
“The contention that the judgment of the Supreme Court must be read behind the signature of the district judge, as though rendered by him, and that prescription must be computed from that signature, can hardly be considered serious — for, that would bo to allow prescription to run against a judgment before it existed.
“By ‘rendition’ found in article 3547, R. C. C., the Legislature meant the finality of the judgment, sought to be revived, whether by the signature of the district judge, or by the expiration of the last judicial day allowed to ask a rehearing, or the refusal of such rehearing.”
It is suggested by counsel that in a later decision (Hayden v. Sheriff, 43 La. Ann. 385, 8 South. 919), this court took a different view, but in that case the present point was in no way involved.
In discussion, in consultation, it was suggested that the prescription as to the judgment rendered by the Supreme Court should run from the date the judgment was handed down,'January 7,1907, and not from the date the rehearing was refused. But a judgment is not final so long as an application for a rehearing is pending; and, as was said by this court in the Seelye Case, supra, “By rendition found in article 3547, C. C., tlie Legislature meant the finality of the judgment;” and a judgment is not final so long as an application for a rehearing is pending. An application for a rehearing in the appellate court is analogous to an application for a new trial in the trial court, and in the trial court a judgment does not become final until the delay for application for a new trial has expired. Until then it is no judgment, and cannot even be validly signed.
As to the $2,974.67 for which the district court gave plaintiff judgment, the decisions of this court in the cases of Arrowsmith v. Durell, 21 La. Ann. 295; Walker v. Succession of Hayes, 23 La. Ann. 176; Byrne, Vance & Co. v. Garrett, 23 La. Ann. 587; Samory v. Montgomery, 27 La. Ann. 50, would appear to control. They hold that an appeal, whether suspensive or devolutive, does not arrest the course of the prescription.'
The trial court overruled the plea of prescription in toto. It should have been sustained as to the $2,942.37 for which the trial court had rendered judgment in favor of plaintiff, and overruled as to .that part of the judgment which came into existence only by the judgment of the Supreme Court.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed, except as to that part of it consist-
Dissenting Opinion
(dissenting). It must be conceded that the judgment for the amount of the increase over and above the $2,974.67, for which the district court had rendered judgment in favor of plaintiff, was not rendered until the Supreme Court rendered judgment in the case. As to the amount of the increase, the case is the same in principle as the case of Scott v. Seelye, 39 La. Ann. 749, 2 South. 309. That decision is correct in so far as it holds that, when the court of original jurisdiction rejects the plaintiff’s demand and the appellate court renders judgment for a sum of money in favor of the plaintiff, the prescription of 10 years runs from the date the judgment was rendered by the appellate court. The reason for the ruling is that article 3547 of the Civil Code, according to its precise language, refers only to “judgments for money.” The article declares:
“All judgments for money, whether rendered within or without the -state, shall be prescribed by the lapse of ten years from the rendition of such judgments,”
The decision handed down in the present case, from which I respectfully dissent, holds that the word “rendition” means “the finality of the judgment.” That ruling is in conflict with the precise language of the Code, and in conflict with the rulings in the four cases cited, viz.: Arrowsmith v. Durell, 21 La. Ann. 295; Walker v. Succession of Hayes, 23 La. Ann. 176; Byrne, Vance & Co. v. Garrett, 23 La. Ann. 587; and Samory v. Montgomery, 27 La. Ann. 50.
In Arrowsmith v. Durell it was said:
“The statute before us is, in itself, free'from ambiguity. It says plainly that all judgments for money shall be prescribed by the lapse of 10 years from the rendition thereof, unless revived before they are prescribed, by having citation issued , from the court which rendered them.”
In Walker v. Succession of Hayes it was said:
“ ‘The rendition of the judgment’ is the signing thereof by the judge; at least that act fixes the date of the judgment and the period from which prescription begins to run.”
In Byrne, Vance & Co. v. Garrett it was said:
“ ‘Rendition of the judgment,’ in the act, means when it was completed by the signing thereof by the judge.”
In Samory v. Montgomery it was said:
“In the case of Arrowsmith v. Durell, 21 An. 295, it was expressly decided that a devolu-tive appeal from a final judgment does not suspend or interrupt prescription pending the appeal.
“In Walker v. Succession of Hayes, 23 A. 176, it was held that a suspensive appeal did not interrupt prescription, which, the court said, began to run on the day the judgment of the district court was signed. And, in the case of Byrne, Vance & Co. v. Garrett, 23 An. 587, the same conclusion was reached. We may, therefore, conclude that this first proposition is not supported by authority.”
Not one decision was cited in support of the ruling in Scott v. Seelye, that “by ‘rendition,’ found in article 3547, R. C. C., the Legislature meant the ‘finality’ of the judgment.” In .all of the previous decisions the argument was made that the word “rendition” meant “finality”; and in all of the decisions the argument was rejected, because It was contrary to the precise language of the law. Not one of those decisions was cited in Scott v. Seelye. The decision in
The distinction between the rendition and the finality of a judgment is recognized in the Constitution of this state. Article 117 declares that judgments shall be signed after 3 days from the “rendition” thereof, and shall became final, or “executory” 101 days after being signed.
“Rendition of judgment” is defined in 34 Cyc. 1330 as the announcement from the bench, entered in the minutes, or the filing of the findings, if there are findings, or both; and, in support of the definition, decisions from the court of last resort of almost every state in the Union are cited. I have not been able to find any authority whatever for holding that the expression “rendition of the judgment” means “finality of the judgment.”
If the prescription against an action to revive a judgment is suspended until the judgment becomes final, it must be suspended during the delays allowed for a suspen-sive appeal. If that be true, the fixing of the date of the beginning of the prescription “from the rendition” of the judgment has no meaning whatever. If we are to adhere to the uncalled-for expression in Scott v. Seelye, that the word “rendition” means “finality,” we ought to overrule the long list of decisions to the contrary, instead of citing them with approval. There is no reason whatever for holding that the prescription against a suit to revive a judgment for money shall be interrupted until the expiration of the delays for applying for a rehearing, -jinless we overrule the doctrine' that the prescription is not suspended during the delays allowed for a suspensive appeal, or while such appeal is pending.
The judgment which the plaintiff in this suit is seeking to revive was rendered by the Supreme Court more than 10 years before this suit was filed. The judgment rendered by this court was for $9,942.37. The defendant was given credit for a brokerage commission of one cent per barrel on 125,852 barrels of oil.- By the simple clerical error of moving the decimal three points instead of two points to the left, the court gave him credit for only $125.85, instead of $1,258.52. Because of that error, the defendant applied for a rehearing, and the error was corrected, reducing the judgment to $8,809.70. But the judgment originally rendered by this court included the $8,809.70, because, in fact, the judgment was rendered for that sum, and the apparent excess was merely a clerical error. If the situation were reversed, if the judgment had been rendered by this court originally for $8,809.70, and if, on the application for rehearing, it had been increased to $9,942.37, it might be said that the judgment for tile difference between the two sums was not actually rendered until the correction was made on application for rehearing. But, when this court rendered judgment for $9,-942.37, intending to render judgment for $8,-809.70, it cannot be said that the court did not render the judgment for $8,809.70 until the correction was made.
For the reasons stated, my opinion is that the plea of prescription should be maintained, and that plaintiff’s demand to revive the judgment should be rejected entires iy.
Rehearing
On Rehearing.
By PROVO STY, C. J., and O’NIELL, EAWICINS, LAND, BAKER, and ST. PAUL, JJ.; OVERTON, J., recused.
In the original decree of this court, the plea of prescription of 10 years, against this action to revive a judg
Tbe defendant, appellant in this case, applied for a rehearing, complaining only, of course, of that part of our decree which bad, in part, overruled bis plea of prescription. Tbe rehearing, as to that part of tbe decree, was granted.
Tbe plaintiff, appellee in this case, also applied for a rehearing, complaining only, of course, of that part of our decree that had sustained the plea of prescription against tbe original judgment of $2,97^4.67 rendered by the district court. Tbe application for a rehearing on that part of our decree was refused, and the decree, to that extent, was thereby made final.
The judgment appealed from is annulled, the plea of prescription is sustained, and plaintiff’s demand is therefore rejected, at his cost.
Dissenting Opinion
I respectfully dissent, except as to so much of the claim as was con-
Ante, p. 756.
