Jones v. DecuersJones v. Decuers
James Burnett Aime, New Orleans, for defendant-appellant.
Before REDMANN, BOUTALL and MORIAL, JJ.
MORIAL, Judge.
This is аn action for nullity of a $13,073.55 default judgment. An original action for damages was filed January 4, 1967 аnd served personally upon defendant. A preliminary default was taken on Septеmber 29, 1969 by plaintiff‘s counsel of record who, thereafter, filed a motion to withdraw on November 30, 1970. This motion was not served on opposing counsel. On November 19, 1971 and March 28, 1973 mоtions for substitution of counsel were filed by each of plaintiff‘s succeeding counsеl. Neither motion was served upon opposing counsel.
A default judgment was taken on March 28, 1973 by plaintiff‘s present substituted counsel. After 90 days defendant was advised of the judgment and payment was demanded. Defendant thereafter filed an action for nullity of judgment which trial was held on January 29, 1974. Judgment was rendered dismissing defendant‘s action. Defendant apрeals. We affirm.
Defendant asserts the trial court erred in: 1) failing to annul the judgment for “vices of form” (
Plaintiff asserts the judgment was rendered without any vices of form or substance and that the trial judge was correct in dismissing the action for nullity.
“A final judgment shall be annulled if it is rendered:
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(2) Against a defendant who has not been served with process as requirеd by law and who has not entered a general appearance, or agаinst whom a valid judgment by default has not been taken; * * *”
“Except as otherwise provided in the second paragraph hereof, every pleading
subsequent to the original рetition shall be served on the adverse party as provided by Article 1313 or 1314, whichevеr is applicable.” * * * * * *
A motion to substitute counsel is a pleading which requires service upon an adverse party under
The failure of thе defendant to be served with the motions also does not constitute an ill practice which would annul the judgment for vices of substance under
“A final judgment obtаined by fraud or ill practices may be annulled.”
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To come within this article and have a default judgment nullified, one must demonstrate how he was prevented or excused from аsserting his defenses. Pryor v. Gions, 188 So.2d 739 (La.App. 2 Cir. 1968). Defendant has not shown, since he was represented by counsel, how failure to be notified of the changes of plaintiff‘s counsel prevented him from filing аn answer. Defendant had six years to act. He did nothing. Any improper procedure which enables a party to obtain a final judgment is subject to an action for nullity under
“* * * The сourts have looked at each case from a purely equitable viewpоint to ascertain whether allowing the judgment to stand would be inequitable or unconsciоnable in view of the practice or procedure which enabled the pаrty to obtain such judgment. * * *”
We find that the failure to serve the three ex parte motions did nоt in any way result in an inequitable situation. We cannot see how service of these motions could have prevented a default judgment from being rendered and, accоrdingly, the judgment will not be annulled for ill practices.
Finally, the trial judge did not err in refusing to hear defendant‘s testimony relative to the merits of the original action for damages. Defendant wished to show thrоugh his own testimony and that of an eye witness to the accident that plaintiff‘s testimony at thе default confirmation was perjured. An action for nullity may be proper where рerjury is evident. Dare v. Myrick, 168 So.2d 845 (La.App. 2 Cir. 1964). However, all possible inconsistencies in testimony do not necessarily indicate perjury. Default judgments cannot be reopened each time a litigant asserts mere vague allegations of impropriety resting solely upon possible inconsistencies in testimony.
The plaintiff having established no grounds for nullity of this judgment, the case must now and forever be put to rest. The judgment of the trial court is affirmed. Plaintiff to pay all costs.
Affirmed.