Flint v. Cuny

6 La. 67 | La. | 1833

Martin, J.,

delivered the opinion of the court.

The defendants are appellants from a judgment which thev contend was irregularly rendered, after a former judgment had been signed three days after the verdict had been given, and no motion made for a new trial. The District Court expressing its opinion, that it could correct its own judgment during the term, even ex officio, and accordingly rendering a second judgment in greater conformity to the verdict than the first.

Practice. No amendment ¡¡«of'of ment, can be made after the judgment has m“rtSsc ¡n ¡j™1 LaiTudgmentiai appeal be taken judgment, the exLm“n*°tiieCfirst When the judge a quo amends a

' We are of opinion the judge erred. The Code of Practice, 547, allows the court to make certain amendments, which . it enumerates, until the judgment has been signed. This is ° ° ° certainly an affirmative, pregnant with the negative, that no amendment can take place after the judgment has been signed, nor before, except in one of the enumerated cases; but we have a positive provision on this subject. A - judgment, when duly rendered, (in the French text signé) becomes the property of him, in whose favor it has been given, and the judge cannot alter the same, except in the mode provided for by law. Hid. 5481

Being of opinion that the district judge erred, in rendering the second judgment, the next inquiry is, as to the course we are to pursue after its revisal. It was given on a motion for a new trial, and as we are to give the judgment, which in our opinion ought to have been given below, in lieu of the one we reversed, and we think this ought to have been, that the motion for a new trial be overruled.

We have next considered, whether we could examine the first judgment, and it has appeared to us, that we could not, as neither party has enabled us to do so,-by an appeal, and it is a final and not an interlocutory judgment, duly signed; and which consequently has not, because it could not be altered by the court who rendered, except in the mode prescribed by law, as in an action of nullity. The idea has presented itself to our minds, that the appellees, if they be dissatisfied with the first judgment, maybe said to be preeluded from the rjght of having it examined here, if they do not exercise it now; but after the most mature it has appeared to us, this is not the case, for as the proceedings below, since it was signed, prevented its execution till they were acted upon in this court, and as there cannot two final judgments in the same cause, and in the same court, the effect of the first judgment was suspended, and it did not resume its legal character, till after the reversal of the second judgment. Contra non valentem agere non currit pTCBSCriptio.

In such a case, the effect of the first judgment is does01ndoetd’rcsume versal of the secondjudgmcnt.

It is, therefore, ordered, adjudged and decreed, that the judgment rendered by the District Court, after the motion , for a new trial be. annulled, avoided and reversed, the motion for a new trial overruled. The costs of the appeal to be borne by the appellee.