36 La. Ann. 779 | La. | 1884
The opinion of the Court was delivered by
A judgment was rendered against the plaintiff in favo l of the defendant on March 24, 1882. This suit is to annul that judgment on the ground that it was obtained by fraud and ill-practice.
The judgment was a confirmation of a default, and the alleged fraud is a deception charged to have been practiced upon Duplessis by the attorney of the defendafit in this; — thathewas advised by that attorney not to employ a lawyer to defend the suit as it would be compromised, that he offered a compromise which was accepted, and when calling on the attorney to perfect it, he was put off on the pretext of pressing business from time to time until the day when, to his great consternation, he was served by the sheriff with the notice to vacate, this being the first intimation he had of the existence of the judgment. There is much more of like tenor.
It is a fabrication out of whole cloth. The plaintiff himself on the witness stand says he knew of the judgment the day after it was rendered. It was n it signed till a week after that, during which time he had ample opportunity to have taken any measures open to him, and this was of course some time before service of the sheriff’s notice.
The story of the attorney’s alleged deceit and cozenage is rejected without hesitation. Mr. M’Caleb’s character and uniform conduct forbids a moment’s credence being given to it. He denies it m toto as a witness and is fully corroborated by those who were present, even by the plaintiff’s sister.
Prescription would have barred the present suit even if not against the plaintiff on the merits. That of one year was pleaded. This suit was instituted, that is to say was filed, March 3, 1883 within the year, but citation was not served until Sept. 4, 1883.
The action to annul a judgment for fraud must be brought within the year of its discovery, and the year must be reckoned from the date of service and not from the filing of the suit. Code Prac. art. 613; Stafford v. Smith, 6 La. 91; Rev. Civ. Code, art. 3518.
Judgment affirmed.
