Small v. WabnigSmall v. Wabnig
This аppeal arises out of a suit for nullity of judgment. The original suit from which the judgment arose was filed by Gertrude Loreck Wabnig as a stockholder of Royal Crystal Art Co., Inc., and as a creditor for recovery of rent or other indebtedness due, against that corрoration and Mrs. Lillian Schon Small. The suit sought a liquidation of the corporation and a recognition of Mrs. Wabnig’s ownership of stock, as well as recovery of the alleged indebtedness due her as creditor. Hearing was had in which Mrs. Small was representеd by counsel, and the court rendered a judgment issuing an injunction against Mrs. Small restraining her from disposing of any corporate assеts, ordering the corporation to be liquidated, and appointing a liquidator.
The present suit is brought to annul that judgment dated May 23, 1973, аmended May 24, 1973, to require bond of Mrs. Wabnig for the injunction. To the petition in this suit, Mrs. Wabnig has filed an exception of no cause of аction and alternatively a motion for summary judgment. The record discloses that when these matters were brought for trial, Mrs. Small and hеr attorney made no appearance, the hearing was had without them, and the trial judge rendered a judgment in favor of Mrs. Wabnig maintaining the exception of no cause of action and also granting summary judgment, dismissing plaintiff’s suit. This appeal is taken from that judgment.
We first consider the exception of no cause of action. The petitioner is captioned an action in nullity of judgment obtained by fraud, and presents an action both for a nullity through fraudulent practices and to obtain damages agаinst the defendant. The petition summarizes the allegations of the petition in the original suit reciting in brief that Mrs. Wabing was the owner of 50% оf the corporate stock, that the corporation was indebted to her for various amounts, that because of irreconcilable differences between the two stockholders it was necessary to provoke a judicial liquidation, and then alleges that these allegations were knowingly false. The petition then recites that Mrs. Wabnig had never become thе owner of any stock, that the
We are of the opinion that the trial judge correctly maintained the exceptiоn of no cause of action.
The grounds for nullity of judgment are set out in C.C.P. Art. 2001 et seq., and this particular action is brought under the provisiоns of C.C.P. Art. 2004, providing that a final judgment obtained by fraud or ill practices may be annulled. In pleading fraud or mistake, the circumstancеs constituting fraud or mistake shall be alleged with particularity. C.C.P. Art. 856. Specifically, it has been held that a petition seeking to annul a judgment on the grounds of fraud, misrepresentation or ill practice must clearly allege facts from which such elements may bе unmistakably concluded in order to state a cause of action. Household Finance Corp. of Baton Rouge v. LeJеune,
An examination of the petition before us convinces us that this petition does not meet the requirements of C.C.P. Art. 2004. It simply allеges that what Mrs. Wabnig alleged, and later testified to, was incorrect, and that the judge reached incorrect findings based upоn the evidence presented. ■ There is nothing herein which indicates such fraud as is envisioned by Article 2004. In this regard, we refer to the сase of Termini v. McCormick,
“ . . . it is not sufficient, with reference to the stating of a cause of action, for a plaintiff to mаke general allegations of irregularities and omissions ; he must set forth in his petition, clearly and accurately, definite faсts from which there, can be drawn the conclusion that a reconsideration or the conducting of further proceedings will result in a different decree.”
Similarly, in the case of In re Phoenix Building & Homestead Assn.,
“It is so well settled that it requires no citation of authorities that a mere cоnclusion of the pleader, unsupported by any facts, fails to disclose a cause or right of action.”
It is clear that the petition is simply a denial of the facts urged by the plaintiff in the original suit and those found by the trial judge in his original judgment. This action for nullity amоunts to no more than a belated attempt to appeal from that judgment and have the same issues rehashed. This court, in Suсcession of Quaglino,
“It is the settled jurisprudence of the courts that, ‘matters once determined by a court of competent jurisdiction, if the judgment has becоme final, can never again be called into question by the parties or their privies, though the judgment may have been erroneous and liable to certain reversal on appeal (Emphasis added.) Heroman v. Louisiana Institute,34 La.Ann. 805 . See also, Buillard v. Davis,185 La. 255 ,169 So. 78 , and Metropolitan Bank v. Times-Democrat Pub. Co.,121 La. 547 ,46 So. 622 .”
In accordance with the above reasons, the judgment appealed from is affirmed at appellant’s cost.
Affirmed.