C H F Finance Co. v. Smith

151 So. 2d 364, 244 La. 180, 1963 La. LEXIS 2299
Supreme Court of Louisiana·Decided March 25, 1963·No. No. 46418·Published·Cited by 1 cases

Opinion

HAWTHORNE, Justice.

In this case we are reviewing under our supervisory jurisdiction a judgment of the First City Court of the City of New Orleans which recalled and rescinded an order of devolutive appeal previously granted to defendant Louis Majesty and which dismissed his appeal on the ground that this devolu-tive appeal and the bond were not filed within the period provided by law.

CHF Finance Company, Inc., obtained a final judgment against relator Louis Majesty and another defendant for $221.39 plus interest, attorney’s fees, and costs. The finance company obtained this judgment after relator had filed an answer to the suit and after the case was tried on the merits with relator personally appearing and participating.1

According to the minutes of the court the judgment was rendered in open court on June 6, 1962, and the judgment itself shows that it was read and signed in open court on June 12, 1962. On June 25 relator applied for and was granted a devolutive appeal to the Fourth Circuit Court of Appeal, and on the same day he furnished the required appeal bond. Plaintiff in the suit thereafter caused the issuance of a rule requiring the relator to show cause why the order of the city court granting a de-volutive appeal should not be recalled and rescinded on the ground that his appeal was not applied for, and the bond was not filed, within the period provided by law. The First City Court for the City of New Orleans recalled and rescinded its order granting relator a devolutive appeal and accordingly dismissed his appeal.

On application by relator Majesty, the Court of Appeal, Fourth Circuit, granted alternative writs of mandamus to review the judgment of the First City Court dismissing the appeal. The matter was heard by the Court of Appeal, and for the reasons assigned in its opinion that court .recalled and vacated the alternative writs of mandamus previously issued by it and dismissed the proceedings there. See 146 So. 2d 196. This judgment of the Court of Appeal had the effect of affirming the judgment of the First City Court denying re[366]*366lator’s appeal. Relator then applied to this court under our supervisory jurisdiction for our review of that judgment of the city court.

As this case is one involving more than $100.00, the law fixing the time for taking an appeal from the judgment of the city court is set out in Articles 5001 and 5002 of the Code of Civil Procedure. These articles read:

“Art. 5001. * * *

“Except as otherwise provided in Article 5002, the procedure in a civil case in a city court of which a justice of the peace does not have concurrent jurisdiction is the same as that provided by law for a civil case in the district court of the parish in which the municipality is situated.”

“Art. 5002. * * *

“A new trial may be applied for within three days, exclusive of legal holidays, of the date of judgment, or within three days of the service of notice of judgment when necessary.

“A devolutive or suspensive appeal to the proper appellate court may be granted if applied for within ten days after the expiration of the delay for applying for a new trial, or within ten days of the denial of a new trial, * * * ” (Italics ours.)

Under the provisions. of Article 5002 relevant to this case,2 relator’s appeal could be granted within 10 days after the expiration of the delay for applying for a new trial, and relator could apply for a new trial within three days, exclusive of legal holidays, “of the date of judgment”. The question for determination is the meaning of the term “date of judgment”. Respondent takes the position, and the Court of Appeal in its decision agreed with it, that the “date of judgment” is the date of rendition of judgment, in this case June 6. Relator contends that the “date of judgment” is the date the judgment was signed by the judge in open court, that is, June 12. If respondent is correct, relator’s appeal was too late; if relator is correct, his appeal was timely.

Article 5001 provides generally that the procedwe in civil cases in the city courts of which a justice of the peace does not have concurrent jurisdiction is the same as that provided by law for civil cases in the district court of the parish in which the municipality is situated. The official revision comments to Articles 5001 and 5002 state: “ * * * Art. 5001 ties in the general procedure used in district courts * * * but certain exceptions are essential, and these are covered by Art. 5002. The principal chamges are the reduction of the delay for answering and the requirement of filing exceptions with the answer(Italics ours.)

Mr. Henry G. McMahon’s summary of procedural changes in Book VIII, Title III, which contains Articles 5001 and 5002, shows that the changes regarding delay periods were in the length of delay; nothing is said of any real change in applying for a new trial, and nothing to indicate that there was an intention to change the focal point for the commencement of delays.

These comments, when considered with the general provisions relating to rendition of judgments and the law relating to the delay for applying for a new trial in the district court, convince us that the time for commencement of delay for applying for a new trial in the city court under Article 5002 was intended to be the same as in the district court. A consideration of the articles of the Code of Civil Procedure dealing with the procedure in civil cases in the district court is therefore in order.

According to Article 1911 found in the general provisions dealing with rendition of judgments, all final judgments shall [367]*367be read and signed by the judge in open court. The official revision comments to this article reflect that it was intended that “ * * * judgments are to be signed at the time of rendition or at any time thereafter”. (Italics ours.) The comments further explain that this provision was inserted to eliminate the different .rules existing in Orleans as opposed to the other parishes regarding the time when judgments could and should be signed. A study of the general articles on rendition of judgments and their modification in the trial court, Chapters 3 and 4, Title VI, Book II, reveals that the redactors intended to eliminate the confusion in Louisiana regarding rendition and signing of judgments and the time they become legally effective, to commence the delay for applying for a new trial from the signing of judgment, and to make the time for applying for a new trial uniform throughout the state. For instance, the preliminary statement by the redactors to the chapter on rendition of judgments commences: “One of the problems dealt with in this Chapter is the elimination of the confusion in Louisiana law regarding the rendition and signing of judgments and the time they become legally effective. * * * ” 4 LSA-C.C.P., p. 370.

Articles 1913 and 1974 of the Code of Civil Procedure as amended in 1961 by Act 23 eliminate the necessity of notice of all final judgments except as provided therein and make the time for applying for a new trial commence to run from the day the judgment was signed, except in cases where notice is required and then the time commences to run on the day after notice of signing is made or served.3

A comment in 21 La.L.Rev.

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C H F Finance Co. v. Smith, 151 So. 2d 364, 244 La. 180, 1963 La. LEXIS 2299 (La. 1963).

151 So. 2d 364 (C H F Finance Co. v. Smith) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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