Gilbert v. Pearson

478 So. 2d 937
CourtLouisiana Court of Appeal
DecidedNovember 7, 1985
Docket84-843
StatusPublished
Cited by7 cases

This text of 478 So. 2d 937 (Gilbert v. Pearson) 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
Gilbert v. Pearson, 478 So. 2d 937 (La. Ct. App. 1985).

Opinion

478 So.2d 937 (1985)

J.C. GILBERT, Plaintiff-Appellee,
v.
W. Carey PEARSON, Defendant-Appellant.

No. 84-843.

Court of Appeal of Louisiana, Third Circuit.

November 7, 1985.
Rehearing Denied December 10, 1985.

*938 Walter Clawson, Shreveport, for defendant-appellant.

Griffing & Johnson, George Griffing, Jonesville, Jack F. Owens, Jr., Harrisonburg, for plaintiff-appellee.

Before GUIDRY, STOKER and KING, JJ.

STOKER, Judge.

Plaintiff-appellee, J.C. Gilbert, instituted this suit on May 9, 1983 to revive two judgments he obtained against defendant-appellant, W. Carey Pearson, in 1973. Pearson reconvened to assert an action to declare the judgments null and void on the grounds that they were obtained by fraud or ill practices. The Seventh Judicial District Court for Catahoula Parish sustained Gilbert's exception of prescription as to the action of nullity and granted Gilbert's motion for summary judgment reviving the 1973 judgments. Pearson appeals.

FACTS

J.C. Gilbert filed suit against W. Carey Pearson on three promissory notes on July 26, 1972. Gilbert alleged that the indebtedness on the notes was in the amounts of $1,900.76, $1,050.42 and $16,042.75 respectively. Interest and attorney fees were also due. Pearson filed an answer and reconventional demand alleging that the third and largest note was invalid because of a lack of consideration and fraud in the transaction. He also disclaimed personal liability on all three notes, alleging that they represented the indebtedness of the Louisiana Mud and Chemical Corporation. On June 25, 1973 Pearson's attorney, Donnie Ellerman, was allowed to withdraw as counsel. A minute entry on June 28, 1973 reflects that on that date Ellerman was ordered in open court to remain as Pearson's counsel. No written order to that effect was ever issued. On that same day, June 28, a judgment was rendered in the Seventh Judicial District Court for Catahoula Parish in favor of Gilbert on the two smaller notes. Trial on the $16,042.75 note was held on November 15, 1973, and judgment again was rendered in favor of Gilbert. The formal judgments and the court minutes show that Ellerman was present in court both on June 28 and November 15 on Pearson's behalf, though the attorney's name was added in a different type on the latter judgment. The judgments were never paid.

*939 Gilbert filed a petition to revive the judgments on May 9, 1983. He alleged that Pearson was absent, so an attorney was appointed to represent him. Gilbert later learned that Pearson was in the State and had personal service made on him. In an amended answer, Pearson again alleged fraud and a lack of consideration for the largest note and that he was not liable personally on any of the notes, as they represented the indebtedness of the Louisiana Mud and Chemical Corporation. In reconvention, Pearson prayed for an annulment of the judgments. Pearson also filed a third party demand against Ellerman, his former attorney, alleging that Pearson was in Scotland at the time of the 1973 judgments, that Ellerman had promised to handle the matter, that Ellerman failed to do so, and that Ellerman's negligence left him unrepresented in the actions. In response to the reconventional demand Gilbert filed exceptions of prescription and res judicata, and a motion for summary judgment in the revival action. After a hearing, the trial court sustained the exception of prescription and granted the motion for summary judgment. The earlier judgments were thus revived. No disposition was made of the third party demand against Ellerman. Pearson has appealed suspensively from the judgment. He assigns as error the trial court's action (1) sustaining the exception of prescription and dismissing the action to annul the earlier judgments; (2) granting the summary judgment to Gilbert, which revived the 1973 judgments; and (3) accepting testimony at the hearing on the motion for summary judgment.

MOTION FOR SUMMARY JUDGMENT AND EXCEPTION OF PRESCRIPTION

Gilbert instituted this suit under LSA-C.C.P. art. 2031, which provides that "judgment shall be rendered in such proceeding reviving the original judgment, unless the defendant shows good cause why it should not be revived." Pearson claims that he has presented good cause to prevent the revival, namely, that the prior judgments are relative nullities as they were based on fraud or ill practices and therefore may be nullified under LSA-C. C.P. art. 2004. Pearson cites several cases for the proposition that a judgment which is null and void cannot be revived. We might agree; however, the two 1973 judgments have not yet been adjudged null and void. Pearson alleges that they are relative, not absolute nullities. An action to annul a judgment as an absolute nullity under LSA-C.C.P. art. 2002 may be brought at any time. The judgment cannot be revived as it is considered in law as never having been rendered. Since the action is never lost through prescription, this type of nullity may be interposed at any time as a defense to an action to revive the judgment. Texaco, Incorporated v. Finegan, 119 So.2d 646 (La.App. 2d Cir.1960); Hayden v. Slaughter, 43 La.Ann. 385, 8 So. 919 (1891); In re Board of Administrators, 37 La.Ann. 916 (1884); Theriot v. Bayard, 37 La.Ann. 689 (1885); Conery v. Rotchford, Brown & Co., 30 La.Ann. 692 (1878); Levy v. Calhoun, 34 La.Ann. 413 (1882); Folger & Son v. Slaughter, 33 La. Ann. 341 (1881); King v. Pickett, 32 La. Ann. 1006 (1880); Hammett v. Sprowl, 31 La.Ann. 325 (1879); Marbury v. Pace, 30 La.Ann. 1330 (1878); Gallagher v. Rotchford, Brown & Co., 34 La.Ann. 520 (1882); Laurent v. Beelman, 30 La.Ann. 363 (1878).

In contrast, an action to annul a judgment because it is a relative nullity must be brought within one year of the discovery by the plaintiff (in this case, plaintiff-in-reconvention). Once that action has prescribed, the party alleging the relative nullity is no longer able to raise the issue even in defense of an action to revive a judgment. The Louisiana courts have long held that in an action to revive a judgment the defendant cannot set up, in opposition to the suit for revival, relative nullities with which the original judgment was affected. Bruno v. Oviatt, 48 La.Ann. 471, 19 So. 464 (1896); McCutchen v. Askew, 34 La.Ann. 340 (1882); Folger & Son v. Slaughter, supra; Hammett v. Sprowl, supra; Drogre v. Moreau, 23 La.Ann. 173 *940 (1871); McStea v. Rotchford, Brown & Co., 29 La.Ann. 69 (1877). To allow such a defense would permit a collateral attack on the judgment. A collateral attack is defined as an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling it. Pontchartrain Park Homes, Inc. v. Sewerage and Water Board of New Orleans, 246 La. 893, 168 So.2d 595 (1964); Brigot's Heirs v. Brigot, 47 La.Ann. 1304, 17 So. 825 (1895).

"No principal of law has received greater and more frequent sanction, or is more deeply imbedded in our jurisprudence, than that which forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab initio." Nethken v. Nethken, 307 So.2d 563, 565 (La.1975), and cases cited therein.

Regardless of the legal force and effect of a judgment which is not absolutely null, and even if it is irregularly rendered, an interested party is entitled to have it revived.

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Bluebook (online)
478 So. 2d 937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbert-v-pearson-lactapp-1985.