Jefferson v. Jefferson

153 So. 2d 368, 244 La. 493, 1963 La. LEXIS 2401
CourtSupreme Court of Louisiana
DecidedApril 29, 1963
DocketNo. 46515
StatusPublished
Cited by9 cases

This text of 153 So. 2d 368 (Jefferson v. Jefferson) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jefferson v. Jefferson, 153 So. 2d 368, 244 La. 493, 1963 La. LEXIS 2401 (La. 1963).

Opinions

McCALEB, Justice.

The relators applied to this Court for a writ of alternative mandamus to compel the Court of Appeal, Third Circuit, to consider their application for a rehearing. The adverse judgment was rendered by the Court of Appeal on September 24, 1962 and notice thereof was deposited in the United States mail on the same day. The notice was delivered to counsel for relators on the following day, September 25, 1962, and an application for a rehearing was filed on October 9, 1962, which was within 14 days after notice of the judgment was received by counsel. The Court refused to consider the application for the reason that the uniform rules of the courts of appeal require that an application for rehearing be filed on or before the 14th calendar day after delivery of notice of judgment * * * by deposit in the U. S. mail * * * ” which in this case was October 8, 1962, whereas the application was not filed until October 9, 1962. See La.App., 145 So.2d 356.

In view of our decision in Wanless v. Louisiana Real Estate Board, 243 La. 801, 147 So.2d 395, we ordered the respondent court to pass on relators’ application for rehearing or to show cause why the relief prayed for should not be granted. The judges of the Court of Appeal did not comply with the order; instead, they resisted relators’ demand and have prayed that this Court declare that Rule XI, Section 1, Uniform Rules of the Courts of Appeal constitutes, as adopted, a valid exercise in all respects of the rule-making power delegated to those courts by Section 24 of Article 7 of the Louisiana Constitution, as amended by Act 561 of 1958.1

In Wanless v. Real Estate Board, supra, we had for decision the question of whether an application for rehearing was timely filed in the Court of Appeal, First Circuit, on March 30, 1962 in view of the fact that the notice of the judgment, which was dated March 16, 1962, was mailed on March 15, 1962 and received on the following day, March 16, 1962. The fourteenth day after March 15, 1962 was March 29, 1962 and, hence, the application would not have been timely filed on March 30, 1962, according to the Uniform Rules of the Courts of Ap.-peal which provide that notice of judgments will be delivered “ * * * personally, or by certified or registered mail' * * * ” and that the application for ¡rehearing “must be filed * * * on or before the fourteenth calendar day after such delivery * * * by deposit in the U. S. mail, * * * The Court of Appeal nevertheless entertained the application for rehearing over the objection of the prevailing litigant and, when the case was brought here on a writ of review, counsel for this litigant moved to dismiss the proceeding on the ground that the application for rehearing had not been timely filed in the Court of Appeal. This motion was overruled by us on two grounds — (1) that, since it appeared that the Clerk of the Court of Appeal admitted that he made a mistake in mailing notice to counsel on March 15, 1962 when the decision, although handed down on March 14, 1962, and notice thereof was scheduled for mailing on March 16, 1962 (which was the day stamped thereon), the application was timely filed on March 30, 1962 — and (2) that, in any event, the application was filed timely on that date because the fourteen-day delay allowed by law for filing applications for rehearing in the courts of appeal did not commence to run until March 16, 1962, the day upon which counsel of record received notice of the judgment of the Court of Appeal.

[370]*370In reaching this latter conclusion, we found that the rule-making power vested in the Courts of Appeal by Section 24 of Article 7 of the Constitution did not authorize them to ascribe to the constitutional provision — that “Notice of all judgments shall be given to counsel of record; and the court shall provide by rulé- for the giving of such notices” — a different interpretation than had been previously given by this Court to the language used therein in our decisions in Lacaze v. Hardee, 199 La. 566, 6 So.2d 663; Mid-State Tile Company v. Chaudoir, 228 La. 634, 83 So.2d 654, 656 and Reeves v. Department of Highways, 228 La. 653, 83 So.2d 889. Noting that the cited cases had construed the constitutional provision, “Notice of all judgments shall be given to counsel of record”, as requiring that the notice be delivered and received before the delay for applying for a rehearing commenced to run, we declared Rule XI, Section 1 of the Uniform Rules of the courts of appeal invalid, insofar as it conflicted with the Constitution as thus interpreted, and, further, that the rule was contrary to Article 2166 of the Code of Civil Procedure2 and R.S. 13:4446, as last amended by Act 38 of I960.3

Counsel for the respondent judges proclaims that this ruling in the Wanless case was obiter dicta and, being unnecessary to the result there reached, is not controlling. Moreover, counsel asserts that, in any case, our holding was incorrect inasmuch as we failed to consider that the authorities cited in support of our view were decided before the constitutional change effected by the adoption of Act 561 of 1958, which deleted from Section 24 of Article VII the last sentence thereof providing that “No delay shall run until such notice shall have been given”. It is argued that the prior jurisprudence, which holds that the mere mailing of notice does not constitute the giving of notice as required by Section 24 of Article VII, was predicated entirely on the last sentence of the constitutional provision and that the specific purpose of the deletion of this sentence by constitutional amendment was to enable the courts of appeal to provide, by uniform rules, for the administratively-fixed date of mailing, rather than the variable date of receipt, to govern the time when the delay for filing applications for rehearing would commence to run.

We find no merit in counsel’s first contention that our holding in the Wanless case, anent the unconstitutionality of the rule of the courts of appeal to the extent therein specified, is obiter dicta. On the contrary, a mere reading of the opinion shows that the conclusion respecting the invalidity of the court rule was deliberate and on an equal footing with the other reason given in disposing of the issue in the case.

Since we have declared the uniform court rule partially unconstitutional, it appears to be somewhat dubious that we have the right to reconsider this ruling in the instant case as counsel for the respondent judges urges us to do. For a rule of court, like a statute, has the force and effect of law and, when a law is stricken as void, it no longer has existence as law (see 16 C.J.S. Constitutional Law § 101; State v. Cormier, 171 La. 1035, 132 So. 779; 11 Am.Jur. “Constitutional Law”, Sec. 148) ; the law cannot be resurrected thereafter by a judicial decree changing the final judgment of unconstitutionality to constitutionality as this would constitute a reenactment of the law by the Court — an assumption of legislative power not delegated to it by the Constitution. 11 Am.Jur. Sec. 198; 21 C.J.S. Courts §215.

[371]*371Nevertheless, in deference to the .sincere belief of the judges of the courts of appeal and their counsel that this Court grievously erred in its holding in the Wanless case in view of the 1958 constitutional amendment to Section 24 of Article VII of the Constitution, we believe we should consider and discuss what effect, if any, has the deletion of the last sentence from the original constitutional provision had upon the import of the language remaining therein.

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Bluebook (online)
153 So. 2d 368, 244 La. 493, 1963 La. LEXIS 2401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jefferson-v-jefferson-la-1963.