83 So. 190 | La. | 1919
Opinion on the Merits
On the Merits.
The issue presented requires an interpretation of article 2, and particularly of section 200, of the act of Congress approved March
It is not contended on behalf of defendant that he is or was in the military service. The suit was brought, and judgment rendered in the civil district court, on promissory notes, for $840, bearing interest and attorney’s fees. The citation and copy of petition were served upon defendant personally and, no appearance having been made by or for him within the delay allowed by law, judgment by default was entered against him. At the expiration of the time allowed by law for setting aside the judgment by default, the case was taken up, and on proof of the claim, but without an affidavit showing that defendant was not in the military service, the judgment was confirmed. Thereafter, when the judgment had been read and signed, defendant appeared in court through his attorney, and, alleging merely that the judgment was contrary to the law and the evidence and that he was aggrieved thereby and desired to appeal therefrom, obtained a suspensive appeal to the Court of Appeal for the parish of Orleans. Plaintiff then filed in the Court of Appeal an ex parte affidavit, declaring that affiant had known the defendant for a period of about 15 years, and that he was not and had not been in the military or naval service of the United States, and was beyond the draft age. Defendant’s counsel moved that the affidavit be expunged from the record, which motion was taken under advisement by the Court of Appeal, and was not thereafter adverted to, except in an expression in the final judgment, to the effect that the court’s conclusion that the judgment appealed from was null rendered it unnecessary for the court to consider the question whether the affidavit was admissible or should be expunged from the record. The judgment of the civil district court was annulled and the case was remanded for further proceedings according to law. The case is.before us on writs of certiorari and review issued at the instance of the plaintiff.
Opinion.
The fourth paragraph of section 200 makes it quite plain that the final judgment of a court of competent jurisdiction shall be prima facie evidence that the person against whom it was rendered was not in the military service. - The paragraph declares that, if any judgment shall be rendered against any person in military service during the period of such service, or within 30 days thereafter, and it appears that such person was prejudiced by reason of his military service in making his defense thereto, such judgment may, upon application made by such person or his legal representative, not later than 90 days after the termination of such service, be opened by the court rendering the same and such defendant or his legal representative let in to defend; provided it is made to appear that the defendant has a meritorious or legal defense to the action or some part thereof. And the concluding sentence of the paragraph declares that the vacating, setting aside, or reversing of any judgment because of any of the provisions of this act shall not impair any right or title acquired by any bona fide purchaser for value under such judgment. Hence it follows that a judgment rendered on default of an appearance by defendant, and without the affidavit referred to in section 200, is not an absolute nullity.
The affidavit filed by plaintiff in the Court of Appeal was not necessary to sustain the judgment appealed from. If the defendant was in the military service at the time or within 30 days before the judgment was ren
The judgment of the Court of Appeal is annulled, and the judgment of the civil district court is affirmed, at defendant’s cost.
Lead Opinion
On Motion to Rescind Writ.
The motion to have the writs rescinded is therefore overruled.