Guidry v. CheramieGuidry v. Cheramie
Lead Opinion
The issue to be determined here is the validity of a judicial sale of immovable property to effect a pаrtition under a commission prematurely issued ordering the sale of the property.
Having been stipulated by the pаrties, the facts are not at issue. Plaintiffs brought suit for partition by licitation of property they owned with defendants. Three of the defendants in the partition suit had personal service; the others received domiciliary service.
On the same day the default judgment was signed, the plaintiffs sought to execute the judgment, and they had the clerk of court issue a commission tо the sheriff to sell the property.
After advertisement, the property was sold at public auction for $40,000, on December 11,1974, to Numa Guidry, Robert J. Guidry, and Dick J. Guidry.
The defendants filed opposition when the partition came on for homologation. After a hearing on September 20, 1976, the trial court set aside the judicial sale in the partition suit; denied the hоmologation of the partition; affirmed the validity of the judgment of partition; and denied defendants’ motion for a new trial.
Plaintiffs suspensively appealed, and the Court of Appeal affirmed the district court judgment.
After a careful review of the law and the proceedings in this case, we have determined that the lower courts erroneously invаlidated the judicial sale.
The lower courts found the judicial sale invalid because the defendants who received domiciliary service were not served with the notice of the default judgment required by Louisiana Code of Civil Procedure Article 1913, which provides in pertinent part:
“Notice of the signing of a default judgment against a defendant on whom citation was not served personally, and who filed no exceptions or answer, shall be served on the defеndant by the sheriff, by either personal or domiciliary service.”
On the basis of this article, the lower courts found that the dеlays for application for a new trial and the taking of a suspen-sive appeal did not begin to run against thоse defendants who received only domiciliary service until such time as they were served with notice of judgment requirеd by the article. LSA-C.C.P. arts. 1913, 1974, 2087, 2123. Thus, the judgment while valid was not final as to those defendants.
The sale of property to effeсt a partition is merely a preliminary step to the partition itself. In reality, the partition is the division of the proсeeds from the sale of the property. Hollingsworth v. Caldwell,
In the present case, despite defendants’ contention that, due tо their lack of notice of the judgment of default, they were unable to attack the judgment of partition and salе, such is not the case. The defendants were allowed to attack the judgment of partition and sale in their oрposition of the homologation. At that point, the judgment of partition was upheld, and defendants chose not to appeal. That portion of the judgment declaring the partition valid became final.
It is a well-settled principle of law in our jurisdiction that a judicial sale made under a writ or process prematurely issued cannot be annulled solely on the ground of prematurity. Gentilly Development Co. v. Carbajal,
For the reasons assignеd, that portion of the judgment of the Court of Appeal affirming the Seventeenth Judicial District Court’s judgment setting aside the judiсial sale in the partition suit and denying the homologation of the partition is reversed, and the case is remanded to the Seventeenth Judicial District Court, Parish of La-fourche for further proceedings consistent with law and the views herein expressed.
Rehearing
ON REHEARING
In their application for rehearing, defendants allege that they filed an answer to plаintiffs’ appeal to the Court of Appeal. They attach a copy of that answer. Thus, it appears thаt the statement in our opinion that defendants did not appeal is in error.
Actually whether defendants had or hád not appealed the portion of the judgments adverse to them, i. e., upholding validity of the judgment ordering the partition аnd denying their motion for a new trial with respect thereto, the finality of such judgment in either event would have succeeded the partitiоn sale. [Considering that defendants had appealed, by way of answer to plaintiffs’ appeal, that portion did not become final until after the unfavorable judgment in the Court of Appeal.]
The sale we find valid even though made under a writ of process prematurely issued was one which preceded defendants’ rule and judgment thereon.
Contrary to the not unreasonable inference which might be gleaned from our opinion, the reasons for our holding аre thus unaffected by defendants’ appeal (or non appeal) and our erroneous observation that defendant did not appeal the post sale judgment on rule did not affect the result in this case.