Dodd v. Schell

207 So. 2d 807, 1968 La. App. LEXIS 5391
CourtLouisiana Court of Appeal
DecidedMarch 4, 1968
DocketNo. 2944
StatusPublished
Cited by7 cases

This text of 207 So. 2d 807 (Dodd v. Schell) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dodd v. Schell, 207 So. 2d 807, 1968 La. App. LEXIS 5391 (La. Ct. App. 1968).

Opinion

BARNETTE, Judge.

This is an appeal from a judgment of $859 with interest and costs rendered by confirmation of default. The entire record consists of only 15 pages; and rather than attempt a narration of the case, we will state chronologically every significant fact and quote literally from the record the-entries which have particular significance.

Suit was filed May 26, 1965, by Alvin Dodd against Albert L. Schell for $859, [808]*808this amount being the alleged balance due on a plumbing contract of $3,009. There is no allegation that the contract was in writing; it is alleged merely that “petitioner agreed to install the plumbing fixture [sic], supply the labor and other various plumbing work in and on defendant’s property * * * for a total price of $3,009.-00”. The petition is signed by Eugene E. Leon, Jr., attorney for petitioner. Personal service was obtained on May 29, and a return thereof was filed June 2, 1965.

The next instrument appearing in the record was filed two years later, and is a printed form with blank spaces filled in by typewriter and filed May 25, 1967. It is a motion by Albert L. Schell for security for costs. In handwriting above the signature of the judge is: “Denied. Advance court cost has been paid. [Signed] Eugene E. Leon, Jr., Judge.” It is dated “Pointe-a-la-Hache, La., May 25, 1967.” At the bottom is the penciled notation: “5/25/67 - cc: T. M. McBride, III.”

On page 1 is the following minute entry:

“Extract from Minutes of Court — Thursday, May 25th, 1967
PURSUANT TO ADJOURNMENT THE COURT MET:
PRESENT: HON. EUGENE E. LEON, JR., JUDGE, DIV. ‘B’.
NO. 8547
ALVIN DODD
VS.
ALBERT L. SCHELL
Mr. A. D. Freeman, Jr., appeared, and moved that his name be entered as counsel for plaintiff and it was so ordered by the Court. On motion of Mr. Freeman the Court ordered a preliminary default entered herein.
AND THE COURT WAS ORDERED ADJOURNED * * *.”

The next filing is a motion and order substituting Morphy, Freeman & Batt as attorneys of record for plaintiff Dodd in place of “Eugene E. Leon, Jr., Esq. [who], has been elevated to the bench.” This order, dated June 5, 1967, is signed by Richard H. Gauthier, Judge, and is endorsed “filed June 5 1967.”

On the same day, June 5, 1967, there was filed an affidavit attesting that defendant was not in military service and also on that date a judgment was rendered by Richard H. Gauthier, Judge, and was signed and filed. The judgment is on a printed form with blank spaces filled in appropriately. The judgment begins with the preamble:

“On motion of A. D. Freeman, Jr., attorney for plaintiff, and on producing to the Court due proof in support of the plaintiff’s demands, the Court considering the law and the evidence to be in favor of the plaintiff, for the reasons orally assigned.
IT IS ORDERED, ADJUDGED AND DECREED * * *.”

Pertaining to this judgment the following minute entry appears:

“Extract from Minutes of Court — Monday, June 5th, 1967
PURSUANT TO ADJOURNMENT THE COURT MET:
PRESENT: HON. RICHARD H. GAUTHIER, JUDGE, DIV. ‘C’.
NO. 8547
ALVIN DODD
VS. Judgment
ALBERT L. SCHELL
This cause came on this day for hearing.
Present: A. D. Freeman, Jr., Attorney for Plaintiff.
Defendant absent and unrepresented.
Alvin Dodd was duly sworn and examined in chief by Mr. Freeman.
[809]*809After offers were made and the matter submitted the Court rendered judgment confirming default entered on May 25, 1967, and also judgment in favor of plaintiff and against defendant, in the full sum of $859.00, together with legal interest from date of judicial demand, and for all costs.
AND THE COURT WAS ORDERED ADJOURNED * *

On June 8, 1967, an answer was filed on behalf of Albert L. Schell, by T. M. McBride, III, attorney. Since the answer was filed after confirmation of default we have given no consideration to the issues attempted to be raised by it.

A motion and order for a suspensive and devolutive appeal was granted, and the order was signed and filed; the required bond was executed and filed and notice of appeal was directed to plaintiff’s attorneys, all on June 19, 1967. Service of notice of appeal was effected on June 22. The return day was extended by order of Eugene E. Leon, Jr., Judge, on August 17, 1967, on motion of the Clerk of Court.

The Clerk’s certificate attached to and being a part of the record before us is as follows:

“I, ALLEN L. LOBRANO, Clerk of the Twenty-Fifth Judicial District Court for the Parish of Plaquemines, State of Louisiana, do hereby certify that the record filed herewith is the original record and includes the pleadings, etc. filed in said cause.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of our said Court at Pointe-a-la-Hache, Louisiana, on this 2nd day of October, 1967.
[Signed] Allen L. Lobrano Clerk of Court.”

The plaintiff’s petition clearly indicates that the agreement to do the plumbing work was a verbal contract for $3,009. The Civil Code of Louisiana in Title IV “Of Conventional Obligations,” in chapter 6 “Of The Proof of Obligations And That of Payment,” provides in section 2 “Of Testimonial Proof” in article 2277 as follows:

“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”
LSA-C.C.P. art. 1702 provides:
“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
When the demand is for a sum due on an open account, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a negotiable instrument, no proof of any signature thereon shall be required.”

The foregoing procedural requirement of proof sufficient to establish a prima facie case must be read in connection with the specific proof required for verbal contracts or agreements above $500, and only when this specific requirement has been met can it be said that the proof is sufficient.

The question therefore is whether the judgment upon confirmation of default is supported by the required proof of at least

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Bluebook (online)
207 So. 2d 807, 1968 La. App. LEXIS 5391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dodd-v-schell-lactapp-1968.