35 La. Ann. 117 | La. | 1883
The opinion of the Court was delivered by
The defendant appeals from a money judgment against him.
He assigns as error, patent on the face of the record, that the judgment by default properly taken against hirn was prematurely confirmed on the third judicial day, and that this could only have been done on the fourth judicial day, as he was entitled to the whole of the third judicial day to set the default aside.
• The appellant lias misconceived the law on the subject.
Article 312, C. P., which is applicable thereto, is in the following terms: '
“If two days after this first judgment has been rendered, the defendant neither appear nor file his answer, a definitive judgment will then, be given for the plaintiff, provided he prove his demand.”
Previous to 1853, the delay required to elapse between the default' and the confirmation was three days.
The decisions on the Article, as it was and as it is, are uniformly that a default can be confirmed after the full expiration of the prescribed delay. 3 L. 113, 115; 14 L. 268; 1 R. 448; 12 R. 41; 2 An. 806; 15 An. 224; 24 An. 137, etc.
. The appellant however relies upon Article C. P. 318, which says that:
He contends that under the terms of the two Articles and the juris» prudence upon them, the law requires as well that the whole of the eleventh day following the service of a citation, shall be allowed to pass before a default can be taken, as that the whole of the third day shall also elapse before a default can be confirmed.
The authorities to which our attention has been called, 25 An. 137; 29 An. 224, 850; 30 An. 677, no doubt contain a correct exposition of the law, but have no bearing on the point now at issue.
The error in which the appellant has fallen is the legitimate result of a confusion of ideas on the subject of computation of time.
While it is undeniably true that a default cannot be taken before the eleventh day, after service of the citation, it is equally so that a default can not be confirmed before the third judicial day after the taking of the default; but- it may well be so on that third day.
In the first, case, the defendant is given ten full days to appear, which are to be counted from and exclusive of the day of service of the citation. In the second case, he is allowed two full judicial days, to be counted from and exclusive of the day on which the default is entered, to set it aside or file his answer. If he do not appear within the ten days following the service of a. citation, a default can go against him on the eleventh day, not before. If he do not set the default aside within the two judicial days following that on which it was entered, confirmation, on proof, can take place on the third judicial day, not before.
The initial point for computation, in the first instance, is the day of service of citation, excluding it from the ten days. The initial point, in the second instance, is the.day of the taking of the default, excluding it from the two judicial days. The law is equally imperative in both cases.
It does not allow the defendant the third judicial day following the taking of the default, unless no confirmation has intervened.
In the present case it is admitted that the default was properly taken on the 18th of May, 1882. The 19th and 20th, following, were judicial days. The 21st was Sunday. The default was confirmed on the 22d of May, 1882. The entire delay of two judicial days allowed by law had then fully elapsed. The judgment of confirmation was, therefore, seasonably rendered.
Construing tho Articles differently would be to do them violence, by allowing three instead of two judicial days, and to run counter a uniform practice of more than half a century, which has never been questioned.
The appellee, treating the appeal as frivolous, has prayed for damages.
We think him entitled thereto.
■ It is, therefore, ordered and decreed, that the judgment appealed from be affirmed. It is further ordered and decreed, that the plaintiff recover of the defendant ten per cent, damages on the amount of the judgment, and costs in both Courts.
Rehearing refused.