
    No. 3390.
    J. O. Noyes v. Sigmund Loeb.
    An action to annul a judgment may bo entertained as a general rule, if it l>o shown that the machinery of tho court has been abusod. In such a case tho court will prefer to excuse an inadvertence rather than to encourage a fraud.
    A judgment will be annulled if it be shown that tho instrument on which it is based has been paid or satisfied before tho institution of suit, and the fact of payment concealed.
    APPEAL from tho Sixth District Court, parish of Orleans. Gooley, J.
    
      Henry 13. Kelley, for plaintiff and appellant. 13. B. Foreman, for defendant and appellee.
   Howe, J.

This case, which is a suit of nullity, was before us last winter upon the peremptory exception of no cause of action, and we liad occasion to decide that tlie petition showed a cause of action and to reverse the judgment of the lower court. 23 An. 13. The cause being remanded for a trial on tho merits, judgment was given by tho lower court in favor of defendant, and the plaintiff has again appealed.

Tlie judgment sought to he annulled was rendered in tlie case of Loeb v. Noyes upon a promissory note for $1791 09 during tlie absence of Noyes and his counsel. That it was rendered in their absence is, of course, in itself, no reason for annulling it. It might under some circumstances bo a reason for declining to annul on the ground of laches. But there are eases where tho maxim lilujatoris absentia Dei presentía refleatur applies in full force; and a court of justice perceiving- that its machinery has been abased will prefer to excuse an inadvertence rather than to encourage a fraud. Tlie case at bar belongs to this class. It would be against good conscience to execute the judgment sought to be annulled.

Tho plaintiff in the suit of nullity lias established enough of the allegations of Ms petition to satisfy us of this. 23 An. 13.

Among other facts he has shown that tlie note on which the judgmeat was rendered had been paid to the extent of $1000 and the balance remitted by agreement with the then holders; that Sigmund Loeb, plaintiff in the judgment, acquired the note long after maturity, that the note itself had a credit of $500 indorsed on it and a memorandum at the foot of the credit: Paid to Sigmund Loeb & Co.;” that these indorsements were erased and no explanation offered of such alteration; and that Sigmund Loeb proceeded to take judgment for the whole amount of the note in the absence of his adversary. If the document on which judgment was thus rendered was not forged, it was at least falsified, and the case is brought within the article 607 of the Revised Code of Practice.

The case is stronger in favor of the appellant than that of Beau- , champ v. McMickon, 7 N. S. 607, for in that chse Beauchamp confessed judgment upon a document purporting to be a copy of a lost draft, and it might have been urged that ho had fully admitted the correctness of tho cop^-. Yot it appearing to have been false, the court, Martin, Judge, said: “Truth must be the basis of all judgments, and where one is obtained on false documents made by the party in whose favor it is rendered, the detection of the falsity must entitle the opposite party to relief, even where there is no malice.”

It is therefore ordered that the judgment appealed from be reversed. It is further ordered that tho judgment in tho suit No. 1165 of the docket of the Sixth District Court for the parish of Orleans, in favor •of Sigmund Loeb v. James O. Noyes, for the sum of $1791 09, rendered March 16, 1870, and signed March 23, 1870, be annulled; that the preliminary injunction issued herein on the twenty-sixth April, 1870, commanding Sigmund Loeb and the civil Sheriff of tho parish of Orleans to desist from attempting to enforce or execute said judgment be made perpetual; and that Sigmund Loeb pay the costs of both court.

Rehearing refused.  