76 So. 720 | La. | 1917
On May 25, 1912, the two relatriees, married women, executed in the state of Mississippi a confession of judgment, with waiver of citation and of legal delays. Two days thereafter judgment was entered on this confession of judgment in the civil district court of the parish of Orleans, without citation or appearance of either the relatrices or their husbands. Both in the confession of judgment and in the petition praying for the judgment it is stated that the relatrices are residents of the state of Mississippi. The judgment was duly recorded as soon as rendered, in the mortgage records of the parish of Orleans. More than five years thereafter execution issued on, same, and certain real estate belonging to the relatriees in said parish, upon which said judgment by reason of its registry bore judicial mortgage, was seized and advertised for sale. On the day before that set for the sale, the relatriees filed a petition in the court of the respondent judge, alleging that said confession had been obtained by deception and fraud, and was null for that reason and also because petitioners were married women at the time of its execution and had not been authorized by their husbands to execute it; and that said judgment was null because petitioners had not been authorized by their husbands or the court to stand in judgment, and for the further reason that the court was without jurisdiction ratione personae to render it; and praying that the said judgment and all proceedings had under it be annulled, and that an injunction issue against the sale.
The respondent judge heard evidence on a rule nisi, and refused the injunction. The relatriees have applied to this court for a mandamus.
No allegation is made that the debt in question was not due when the judgment was rendered, or is not now due; and the evi dence shows that the judgment was entered with the full knowledge and consent of relatrices, and dispels entirely the atmosphere of ’deception and fraud with which they have sought to envelop the case. But, after all nas been said, the fact stands out that the relatriees were not authorized by their husbands either to give said confession of judgment, to stand in judgment, or to acquiesce in or ratify said judgment.
Paragraph 10 of said article 29S provides for the eases where the'judgment has been extinguished by compensation, set-off, or payment. True, it does not provide for a case like the present, where the judgment never had any legal existence; but a fortiori does it apply to the case of such a judgment, since the principle which it is designed to embody is simply that, whenever an attempt is made to execute a judgment which for any reason is in realty no judgment but only the simulacrum of one, injunction shall lie as of right.
Mr. Wortham, in his work on Procedure in Louisiana (article 118, note), says of the decisions in Adle v. Anty, 1 La. Ann. 260; Lovelace v. Cuny, 3 La. Ann. 619; Champlin v. Lee, 19 La. Ann. 148:
“They hold that the wife can make no appearance without her husband; that such an appearance is no appearance at all.”
And in note (g) the same learned author says that:
“There is logic in the view that the wife’s appearance without her husband’s authorization is no appearance at all.”
In Robinson v. Butler, 6 Rob. 78, where attempts had been made to- procure the authorization of the wife first by asking that the absent husband be cited through a curator ad hoc, and next by asking that the court authorize her, and where the attention of the court had not been called to the fact that both attempts had proved abortive, the court noticed the defect ex proprio- motu, saying, through Judge Martin as the organ of the court, that it was its duty to do so, because:
“This error forms an absolute nullity, one of those which relate to the good order of society.”
And in Champlin v. Lee, 19 La. Ann. 148, one of the cases referred to in Wortham on Procedure, supra, the court said:
“This want of authority has not been brought to our notice by the parties, but, as such proceedings are absolutely null, we feel bound, ex officio, to notice such radical omissions.”
And in White v. Bird, 20 La. Ann. 281, the syllabus reads:
“A judgment rendered against a married woman, without her being authorized to appear in court, is null.”
“In cases provided for by article 298 and others similar, the jurisprudence is perfectly settled that the judge has no such discretion, but is bound to grant the application when made in conformity with the requirements of the law.”
No case could be more similar than one like the present where there is, legally speaking, no judgment.
It is therefore ordered, adjudged, and decreed that a peremptory mandamus issue to