Denis v. Gayle

40 La. Ann. 286

• Court: Supreme Court of Louisiana
• Decided: March 15, 1888
• Docket: No. 10,116
• Status: Published

Opinions

The opinion of che Court was delivered by

Poca, J.

The main question presented for discussion in this ease is to determine whether the owner of an immovable which has been judicially recognized as his homestead under the act of 1865 (Eevised Statutes of 1870, Section 1691,) can sell such property free of judicial mortgages duly inscribed against him .in the parish wherein the property is situated.

Plaintiff, as the transferree of two judgments rendered against the defendant Gayle, seeks to enforce the judicial mortgage resulting therefrom against a tract of land and improvements thereon, now owned by the other defendant, J. L. Kingsbury, under a sale made to him in February, 1883, by Gayle, which property had been judicially declared to be exempt from seizure, as the latter’s homestead in the suit-entitled Ben Gerson & Son vs. A. C. Gayle, Wheeler and Pierson intervenors, reported in the 34th of Annuals, p. 337.

The relief which he prays for is a decree declaring that by reason, and as an effect, of the sale made by Gayle to Kingsbury, the judgment rendered in the suit above mentioned and reported in the 34th Annua], p. 337, had become inoperative and'of no effect, and should, therefore, be avoided, and declaring further that the judicial mortgage resulting from the judgments herein above recited, inscribed before the date of said sale, attaches to and effects said property as having been acquired by Kingsbury subject to said mortgage.

Defendants first pleaded the following exceptions:

1. Want of jurisdiction in the district court to annul a judgment rendered by the Supreme Court.

2. The misjoinder of Kingsbury as a party to this suit, because he was not a party in the judgment sought to be annulled.

3. That the demand for nullity is inconsistent with an action to enforce a judicial mortgage.

4. Want of proper parties, because Ben Gerson and Wheeler and Pierson were necessary parties.

5. No cause of action, because the petition contains no allegation of fraud, error or ill-practice in connection with the judgment sought to be annulled, the correctness of which is not even questioned.

6. The prescription of one year.

Their exceptions having been overruled, defendants filed a general denial, reserving the benefit of their exceptions, and they now appeal from a judgment in favor of plaintiff.

At a glance of the exceptions filed by defendants, it appears that they are predicated on a misapprehension of the true nature of plaintiff’s demand,. and that they could apply only to an action of nullity under the provisions of Section 3, Articls 604 et seq. of the Code of practice, for causes existing previous to or contemporaneous with the rendition of the judgment sought to be annulled.

But, as suggested by defendants themselves in their fifth exception, the present action involves no charge of fraud, error, ill-practice or other ground of nullity as characterizing the judgment to be herein discussed, at the time that it was rendered, or in any way connected with it at the date of its rendition. Plaintiff does not, in any manner, question the correctness of the judgment in its disposition of the issues then tendered to the Court for solution ; hence he does not put at issue the right of Gayle to his homestead as therein recognized under the conditions and circumstances then existing. His contention is simply that the reasons on which the judgment was founded, and from which it derived its vitality, having ceased to exist, the judgment itself having exhausted and completed its entire mission, has become extinct, without force or effect or life. The issues which he now tenders had no being or existence at the time that the judgment was rendered, hence they were no elements in the consideration of the cause, and therefore the judgment could not be res adjudícala as to his present cause of action, which has arisen since the rendition of the judgment, and is entirely disconnected with, or independent of, the state of the case then disposed of.

In the case of Lemunier vs. Mc.Cearley, 37 Ann. 133, which involved the contested custody of a child, aDd in which the defendant was met with a judgment entrusting her with such custody “temporarily or for the present,” as an argument that she was thereby stripped of that right at the date of the case then on trial, this Court said : “ The restriction in that judgment, whether right or wrong, could not and did not compel a like restriction in the judgment now before us under different conditions and state of facts, as we have shown, and whilst we may recognize it as res adjudicada as to the matters and issues there existing, it can have no legal effect upon those now shown in the instant case. For, as stated, we think there is no cause for any limitation or restrictions over the rights of the defendant touching the care and control of the child.”

The same principle came under the consideration of this Court in the case of Davidson vs. the City of New Orleans, 32 Ann. 1248, in which the following conclusions were expressed: “It is easy to conceive, * * * and it is plain, that cases may arise in which causes, occurring subsequently to the rendition of judgments, may render their execution illegal and inequitable and violative of rights not within the contemplation of the Court when the judgment was rendered, and not intended to be foreclosed thereby.” And in that opinion plaintiff’s right to sue for a decree declaring a judgment previously rendered against her inoperative was recognized.

On the merits in the same case, reported in 34 Ann. 170, the nature of the cause was held-to be “ a suit to have that judgment declared1 inoperative, because of what lias occurred since it was pronounced, and which could not have been pleaded before it was rendered.” And sustaining plaintiff’s contention the Court recognized the principle involved in her demand in the following language : “ If the parties have appealed from the judgment aDd it is confirmed by the sentence of a competent superior tribunal, they shall be bound forever by it thereafter; yet if anything should happen to destroy its force, it will cease to have effect, either against the parties or their heirs.”

It is on that principle that plaintiffs present action rests and on its strength his suit must be sustained, as unaffected by defendants’ exceptions, which were properly overruled. Calvett vs. Williams, 35 Ann. 322.