Mann v. Mann

33 La. Ann. 351

• Court: Supreme Court of Louisiana
• Decided: March 15, 1881
• Docket: No. 4598
• Status: Published

Opinion

The opinion of the court was delivered by

Levy, J.

This appeal is taken from a judgment overruling a motion of defendant to set aside a judgment homologating a partition made in the above entitled suit.

Appellant contends that the refusal to set aside the judgment, practically refusing a new trial of the homologation, works an injustice because he had prepared and was ready to file his answer or opposition, and he failed to do so, because his counsel was under the impression that the court would transact no business on the civil docket during the term at which the judgment of homologation was rendered, and this impression was created by remarks which he understood the presiding judge to make to that effect. There is conflicting testimony in regard to the matter; the judge himself declaring that he had made no such remark and given no such intimation. It appears that the notarial act of partition, made under order of court, was filed on the 5th August, 1872; and on the same day plaintiff filed a petition, on which the court granted an order, requiring defendant to show cause in ten days after service why the partition should not be homologated. Service was made on defendant, in person, by the sheriff of the parish of Orleans, the place of his residence, on 19th November, 1872. On 15th January, 1873, nearly sixty days after service, the motion to homologate was fixed for trial. There was no appearance by defendant, no answer, exception nor opposition.

The mere mistake, misunderstanding or misapprehension by counsel of remarks made by the judge cannot afford legal reasons for or excuse them for not taking timely action in urgiDg objection, oppositions, or filing answers. Besides, as to proceedings had in open court, it has been frequently held that the minutes of the court are conclusive as to the fact, and the nature thereof. Judicial records cannot be impeached or contradicted by verbal evidence. Green vs. Reagan, 32 An. 974; 3 An. 631.

The judgment appealed from is affirmed with costs.