de Sentmanat v. Soulé

33 La. Ann. 609

• Court: Supreme Court of Louisiana
• Decided: May 15, 1881
• Docket: No. 6627
• Status: Published

Opinions

On the Motion to Dismiss.

The opinion of the Court was delivered by

Spencer, J.

On the 7th March, 1872, plaintiff took a final judgment by default against her husband, the defendant. The service of the citation was made on the defendant in person. No notice of this judgment was ever given to the defendant, though it was for an amount from which an appeal would lie.

On 28th February, 1877, (nearly five years after the date of the judgment) Widow Seghers and others, alleging injury to themselves as creditors of Nelvil Soulé, applied for and obtained an order of appeal from said judgment. Plaintiff moves to dismiss the appeal as coming too late, and after legal delays had expired.

Art. 575 C. P. declares: “If the appeal have been taken within tea days, not including Sundays, after the judgment has been notified to the. party cast in the suit, it shall stay execution,” etc. So Art. 624 declares that judgments subject to appeal can only be executed “ after ten days* counting from the notification which must be made to the opposite party,” etc.

It is, therefore, clear and indisputable that the delay for appeal runs only from the day the party cast is notified of the judgment against him, oris legally presumed to have notice thereof. If Nelvil Soulé, therefore, was entitled to a notice of the judgment, and is not within that class presumed by law to have that knowledge without formal notice, then, as no notice was ever given him, he could have appealed, and so could his creditors, exercising his rights, on 28th February, 1877.

The plaintiff’s counsel argues with much force that where the defendant has been served personally with citation, he is not entitled to notice of judgment. The Act of 1843 (p. 40) amending Arts, 575 and 624 of C. P., provides that, "Whenever an answer has been filed in a suit in which the defendant has had personal service made upon him to appear and file his answer, or when a judgment has been rendered in a case after answer filed by the defendant or by his counsel, the party cast in the suit shall be considered duly notified of the judgment by the fact of its being signed by the judge.”

Plaintiff insists that that act contains a manifest misprint. That it should read “Whenever No answer has been filed” by a defendant who has been personally cited, “ or when a judgment has been rendered * * * after answer filed by defendant or his counsel," then the party cast is considered to have been duly notified by the fact the judge signing the judgment. Counsel urges that, as printed, the act provides for two cases, which are in fact identical, to wit: 1st, where an answer has been filed;” and, 2d, “when judgment has been rendered after answer filed.” To say the least, the first clause is surplusage, for the case there provided for, is clearly embraced in the terms of tho second clause, as the greater includes the less.

But be this as it may, it is beyond the province of this Court to strike out of the statute the word “ an ” and insert in lieu thereof the word “ no,” without positive proof of the error, furnished by the original enrolled bill, which was no doubt destroyed with the State House at Baton Rouge, and therefore, not now obtainable.

The charge that the two cases provided for in the statute are in fact and substance but one, would not justify us in the interpolation of one word and the expunging of another, thereby making the statute convey a meaning directly opposite to that which it now conveys. It seems that the Legislature has lately had its attention drawn to this matter; for by Act No. 24 of 1876, p. 50, approved March 2d, it is provided that where defendant has had citation served on him personally, no notice of judgment is necessary. Of course that statute cannot have a retroactive effect, and deprive appellants of an appeal taken within twelve months after its passage. By the previous law, the appellants had twelve months from service of notice of judgment within which to appeal. No part of this delay had run when the Aot 24 of 1876 was passed, dispensing with notice of judgment in cases where citation is personally served. Prescription of appellants’ right of appeal began to run, then, only from date of the Act 24 of 1876, and was not complete when the appeal was taken February 28th, 1877.

The motion to dismiss is therefore overruled.