104 So. 616 | La. | 1924
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *684
Defendant filed an answer in which he denied the separation, and set up a reconventional demand, praying for the dissolution of the community, for one-half of all property belonging to said community, as well as for one-half of the rents alleged to have been collected and appropriated by his said wife. Subsequently defendant filed a supplemental answer admitting the separation, and also amending his reconventional demand in certain particulars.
Upon trial of the rule to take judgment upon the face of the papers the court below made the rule absolute and rendered judgment in favor of plaintiff, decreeing an absolute divorce between the parties. Defendant took an appeal from this judgment, returnable to the Supreme Court on September 8, 1924. The transcript was filed September 6, 1924. On September 9, 1924, plaintiff filed a motion to dismiss said appeal on the grounds: (1) That the judgment was pro confesso, and therefore unappealable; (2) that no new trial was asked by defendant in the lower court; (3) that no assignment of errors had been filed in this court by appellant. On September 11, 1924, appellant filed an assignment of errors, reciting his reconventional demand, and alleging as error patent on the face of the record the fact that the trial judge, while granting plaintiff and appellee a judgment of absolute divorce, should have retained jurisdiction of defendant's reconventional demand. Defendant and appellant prays that in due course the judgment appealed from be amended so as to retain jurisdiction of defendant's reconventional demand, and that plaintiff be cast with costs of appeal.
1. The assignment of error was filed within 10 days from the filing of the record, and was in time to prevent the appeal from being dismissed, even though the motion to *686 dismiss was made before the filing of the assignment of errors. State ex rel. Blackman v. Strong, 32 La. Ann. 173; C.P. art. 897.
2. An application for a rehearing or a new trial is not required before party cast in suit may appeal. Levert v. Berthelot,
3. A judgment rendered upon the face of the papers under the "Pleadings and Practice Act" is not a judgment by confession, from which no appeal lies, but is a judgment rendered upon material allegations of fact contained in the petition and not denied in the answer, and, upon allegations of fact in the answer, deemed and taken as true, for the purpose of disposing of plaintiff's rule to take judgment upon the petition and answer. Necessarily in such a case the question of plaintiff's right to a judgment upon the admitted facts is at issue, and presents a question of law reviewable by this court, if vested with jurisdiction over the subject-matter. The "Pleadings and Practice Act" does not deny to a defendant against whom a judgment is rendered on rule the right to an appeal, but provides that "no appeal shall lie from such judgment dismissing such rule." Act 300, 1914, § 1 (4), pp. 612, 613.
The rule, however, in this case was referred to the merits, the case was fixed for trial, and evidence was adduced. The rule was made absolute, and judgment was rendered in favor of plaintiff. It is true that this judgment is silent as to the disposition by the trial judge of the reconventional demand; yet, as the rule was referred to the merits and evidence heard, the judgment of the lower court must be construed as rejecting defendant's demand in reconvention. Defendant's right to appeal is apparent.
The motion to dismiss is therefore overruled. *687
Addendum
Appellee has filed an application herein for a rehearing. The judgment rendered by us does not finally dispose of the case. Hence, under rule 14 of this court, section 5, 136 La. xii, a motion for a rehearing does not lie with respect to the decree rendered. See Gagneaux v. Desonier,
The application for a rehearing therefore is dismissed, without considering its merits.
Addendum
The case is fully stated in the opinion of Mr. Justice LAND on the motion to dismiss. As therein said, the appellant (defendant) prays only that the judgment appealed from be amended so as to retain jurisdiction (by the lower court) of defendant's reconventional demand.
It is therefore clear that a reconventional demand does not come before the court at all on a rule for judgment under the act. So that the clause, "jurisdiction of the cause shall beretained by the court, as regards," etc., does not mean merely that the court shall so provide in its judgment upon the rule. On the contrary, it is a declaration of the law itself that, notwithstanding the judgment on the rule, the court shall nevertheless still retain its jurisdiction of the cause for the purpose of passing in the reconventional demand.
But in the case at bar the minutes of the court below are not clear as to exactly what occurred. In fact said minutes do not show (as they should) what rules were taken on the cause; and such rules appear only by docket entries and from copies brought up in the transcript.
From these docket entries and copies of rules we find that on April 7, 1924, plaintiff filed a rule to dissolve an injunction taken out by defendant. On May 1st that rule was referred to the merits, and the case specially fixed for trial on May 16th, when it was continued to May 18th, and then partially tried and continued as an open case.
Again, from the docket entries and copies of rules (but not from the minutes) we find that thereafter, to wit, on June 23d, plaintiff took another rule, to wit, a rule for judgment of divorce on the petition and answer, made returnable June 26th, on which day, the minutes read, after hearing pleadings andevidence, the rule was made absolute, and a judgment of divorce entered. *689
But the long and short of it is that by fingering the transcript page by page one finds that there were two separaterules taken by plaintiff, one of which was referred to the merits and evidence taken thereon, but never passed upon by the court below; and the other is the rule for judgment which now is before us.
And, since we knew nothing of any rule to dissolve an injunction, we very naturally concluded that the rule which was referred to the merits was the rule with which we were concerned; especially as the minutes read that the judgment on the rule was rendered after hearing evidence.
In this connection we would remind the minute clerks of all courts that the law requires them to enter all motions (or at least their substance) in their minutes. C.P. art. 777. Had such been done in this case, we would have been saved some considerable trouble and annoyance; it is to be hoped that the law will not again be disregarded in that respect.
O'NIELL, C.J., absent.
