181 So. 821 | La. Ct. App. | 1938
On November 9th, 1936, Earl Jefferson brought suit against Laure N. Truck Line, Doyle Speel and Harris Falgout, for compensation, and on August 19, 1937, judgment was rendered and signed awarding him fifty-two weeks at the rate of $3.00 per week. The judgment was paid in full on January 12, 1938. On January 18, 1938, Dr. N.J. Tessitore, who had testified in the case as a medical expert, filed a rule to have his fee taxed as costs which rule, after a hearing, was made absolute, and defendants have appealed.
The judgment under review is attacked upon the ground that it is a revision of a definitive judgment by a method not sanctioned by law. Code of Practice, Article 556. It is also attacked upon the ground that under Subsection 4 of Section 18 of Act
The learned judge, in his reasons for judgment, said: "This is a rule taken by the medical expert to have his charges fixed by this Court for the services rendered. The physician in question did render services to the Plaintiff in the case as a physician, and at the request of the Court, in order to better determine the merits of the controversy, the physician in charge was called in and testified on the Court's invitation as an expert in the matter. In a case such as this one, Section 4 of Act
Under the general law a "definitive judgment cannot be amended by rule to condemn party defendant who, by inadvertence, was not cast in original judgment". State ex rel. Sehrt v. Registrar of Conveyances,
We have no doubt that Dr. Tessitore rendered valuable expert services to plaintiff and to the Court and that his services were helpful in the determination of the compensation case in which he appeared, but no attempt was made to have his fee fixed in the judgment and it was not until nearly five months after the judgment was signed *823 and six days after it had been fully satisfied that any effort was made to have his fee taxed as costs.
The argument based upon the provisions of Act
Reference is made to Section 20 of Act
The purpose of this section is to allow an injured employee or his employer condemned by judgment of Court to pay compensation, to have the compensation adjusted to any change in his disability status which may occur subsequent to the judgment and to have the judgment set aside on the ground of error or fraud. It has no application here.
We believe the judgment appealed from to be erroneous, consequently, and
For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that the rule taken by Dr. N.J. Tessitore, for the purpose of having his fee as a medical expert taxed as costs in the matter of Earl Jefferson v. Laure N. Truck Line et als. be dismissed at his cost.
Reversed.