Jackson v. HannieJackson v. Hannie
The issue presented by this appeal is the validity of a judgment where an ordinary
The sequence of events is as follows:
1) July 7, 1966, the plaintiff, Carl W. Jackson, filed this suit against Dr. George J. Hannie, for a realtor‘s commission of $3,450.
2) September 7, 1966, a peremptory exception of no right or cause of action was filed on behalf of the defendant by John Sheldon Toomer, attorney at law.
3) February 27, 1967, plaintiff filed a motion for a hearing on the exceptions.
4) May 14, 1967, the exceptions were heard and overruled and the defendant was ordered to answer. About this same date, defense counsel, Mr. Toomer, presented an answer and reconventional demand to the district judge, who signed the usual order. Defense counsel mailed a copy to plaintiff‘s attorney but for some reason, which is not shown by the record, did not file these pleadings with the clerk of court.
5) The first assigned trial date was April 4, 1968. This assignment was continued and the case refixed for trial on February 26, 1969. Defense counsel Mr. Toomer, received from the clerk of court a notice, dated June 19, 1968, that the case was fixed for trial on February 26, 1969.
6) On January 15, 1969, Mr. Toomer requested and was authorized by the court to withdraw as counsel of record for the defendant.
7) On February 26, 1969, the case was called for hearing, evidence was adduced on behalf of the plaintiff in open court and judgment was rendered as prayed for. Neither the defendant nor his counsel was present at this hearing. Also on February 26, 1969, the answer and reconventional demand, which had been prepared by Mr. Toomer and a copy mailed to counsel for plaintiff in May of 1967, was filed with the clerk of court. The record does not show who filed it or whether it was filed before or after the trial.
8) On February 27, 1969, judgment was read and signed in open court and notice of judgment mailed to the defendant, Dr. George J. Hannie.
9) On March 3, 1969, a motion for new trial was filed on behalf of defendant by his new counsel, Mr. James L. Babin, on the grounds that the case was assigned for trial before an answer was filed.
10) On March 11, 1969, the motion for new trial was denied. Defendant then took this appeal.
Applicable here are the following articles of our Louisiana Code of Civil Procedure:
“Art. 1571. Assignment by court rule
“The district courts shall prescribe the procedure for assigning cases for trial, by rules which shall:
“(1) Require adequate notice of trial to all parties; and
“(2) Prescribe the order of preference in accordance with law.
“These rules shall not allow the assignment of ordinary proceedings for trial except after answer filed.”
“Art. 253. Pleadings, documents, and exhibits to be filed with clerk
“All pleadings or documents to be filed in an action or proceeding instituted or pending in a court, and all exhibits introduced in evidence, shall be delivered to the clerk of court for such purpose. The clerk shall endorse thereon the fact and date of filing, and shall retain possession thereof for inclusion in the
record, or in the files of his office, as required by law.”
The statement of facts set out above shows clearly that this ordinary proceedings was assigned for trial prior to answer being filed, in violation of Article 1571 quoted above. Nevertheless, the trial judge, in denying the motion for a new trial, reasoned as follows: Both defendant and his then counsel, Mr. Toomer, knew the case was assigned for trial on February 26, 1969. Toomer formally withdrew from the case 40 days prior to this trial date, which gave defendant ample time to obtain another counsel. The trial judge personally tried to contract defendant by telephone the day before the trial and talked to defendant‘s secretary but was unable to reach defendant. The trial judge did talk to Mr. Toomer the morning of the trial and understood that Mr. Toomer was going to appear and ask for a continuance. However, no appearance was made at the trial by defendant or his counsel. In summary, everything was done which could be done to protect defendant‘s right to notice of the trial and afford him an opportunity to appear. Hence, there was substantial compliance with
In our view,
The source of
In Bentley v. Barrett, La.App., 146 So. 349 (2nd Cir.1933) a motion for a continuance was filed on the grounds that no answer was filed prior to assignment of the case for trial. The appellate court annulled the judgment, stating:
“(3) The fixing of this case for trial on April 18, 1932, at 2 p. m., was error, and the motion for continuance on this ground should have been sustained, the fixing upset and refixed for a later date.
“(4) The general rule that the granting or disallowing a continuance is in the sound discretion of the trial judge is not applicable to a case of this kind, where the fixing of the case for trial was before issue had been joined, and therefore illegal.”
In the present case, we hold that the judgment appealed is null and void because this is an ordinary proceeding which was assigned for trial before an answer was filed, in violation of the mandatory requirements of
For the reasons assigned, the judgment appealed is reversed and set aside. This case is remanded to the district court for further proceedings in accordance with law and the views expressed herein.
Reversed and remanded.
ON MOTION TO DISMISS THE SUSPENSIVE APPEAL
After this case was orally argued here on June 11, 1969, plaintiff filed a motion on June 12, 1969 to dismiss defendant‘s suspensive appeal, on the grounds that it was not perfected within 15 days as required by
The record shows that the judgment appealed was signed on February 27, 1969. A motion for a new trial was timely filed on March 3, 1969. The motion was heard and denied on Tuesday, March 11, 1969, without being taken under advisement.
On March 18, 1969, an order was signed granting defendant a suspensive appeal. No devolutive appeal was requested. A bond for the suspensive appeal was filed on March 27, 1969.
Under
Nevertheless, we will entertain the appeal as devolutive. Our jurisprudence under
For the reasons assigned, the suspensive appeal is dismissed but the appeal is entertained as devolutive.
Suspensive appeal dismissed, but appeal entertained as devolutive.
En Banc.
PER CURIAM.
On Application for Rehearing.
The plaintiff-appellee points out that we correctly dismissed as untimely the suspensive appeal taken in this matter, but that our action in entertaining it as devolutive (where no devolutive appeal bond was fixed) is in conflict with our decision in Dupre v. Hartford Accident & Indemnity Company, La.App.3rd Cir., 197 So.2d 119. A majority there reluctantly followed what it deemed to be controlling Supreme Court jurisprudence to the effect that an appeal must be dismissed as devolutive if there is no trial court order, as required by statute, fixing the specific amount of the bond.
Upon consideration of the authorities relied upon in our original opinion herein and in the Dupre dissent, we now expressly overrule this latter decision. The bond filed for the suspensive appeal was obviously more than sufficient to secure the payment of costs, the requirement of a devolutive appeal bond.
Our original opinion adequately disposes of all other contentions raised by the plaintiff-appellee‘s application for rehearing.
We therefore deny such application.
Application for rehearing denied.