
    (104 So. 616)
    No. 26868.
    SUAREZ v. SUAREZ.
    (Nov. 3, 1924.
    On Application for Rehearing Dec. 1, 1924.
    On the Merits May 25, 1925.)
    
      (Syllabus by Editorial Staff.)
    
    1. Appeal and error <&wkey;800 — Assignment of error was in time to prevent appeal from being dismissed.
    Assignment of error, which was filed within 10 days from filing of record, was in time to prevent appeal from being dismissed, though motion to dismiss was made before filing of assignment of errors, in view of Code Prae. art. 897.
    2. Appeal and error <&wkey;28l(l) — Application for rehearing or new trial not required before party cast in suit may appeal.
    An application for rehearing or new trial is not required before party cast in suit may appeal.
    
      3. Appeal and error &wkey;>l24 — Question of plaintiff’s right to judgment on face of papers presents question of law reviewable by Supreme Court, if vested with jurisdiction over subject-matter; “judgment by confession.”
    A judgment rendered on face of papers under “Pleading and Practice Act” is not a “judgment by confession” from which no appeal lies, but is judgment rendered on material allegations of fact contained in petition and not denied in answer, and on allegations of fact therein deemed and taken as true to dispose of plaintiff’s rule to take judgment on petition and answer, and plaintiff’s right to a judgment on admitted facts being in issue, a question of law reviewable by Supreme Court is presented, if it is vested with jurisdiction over subject-matter, Act No. 300 of 1914, § 1(4), pp. 612, Q13, not denying to defendant against whom judgment is rendered on rule right to an appeal.
    I Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Judgment by Confession.]
    4. Divorce &wkey;>28l — Defendant had right to an appeal, where judgment of lower court construed as rejecting his demand in reconvention.
    In suit for divorce in which defendant set up a reconventional demand, and plaintiff’s rule to take judgment on face of papers was referred to the merits, and case fixed for trial, and evidence adduced and rule made absolute, and judgment rendered for plaintiff, judgment would be construed as rejecting defendant’s demand in reconvention, though it was silent as to disposition thereof, and hence defendant had right to an appeal.
    On Application for Rehearing.
    5. Appeal and error &wkey;>830(I) — Motion fo> rehearing would not lie, where judgment did not finally dispose of case.
    Motion for rehearing would not lie under Supreme Court rule 14, § 5, 136 La. xii, where judgment rendered by Supreme Court did not finally dispose of case.
    On the Merits.
    6. Divorce <&wkey;>249(l) — Statute allowing plaintiff by rule to submit his right to judgment on the papers construed.
    In view of Act No. 300 of 1914, pp. 611, 612, § 1, subd. 4, on submission on rule by plaintiff of his right to judgment on the papers, defendant’s reconventional demand in divorce for division of community property does not come before court at all, and, notwithstanding judgment on the rule, court is required to still retain its jurisdiction of the cause to pass on the reconventional demand.
    7. Pleading &wkey;j350(3) — -Court ordinarily not required to mention reconventional demand when passing on rule for judgment.
    Ordinarily there is no occasion for court to mention reconventional demand in passing on .rule for judgment on the papers, since re-conventional demand is not before it at that time.
    8. Courts &wkey;>ll3 — Minutes of trial court should show what rules were taken on the cause.
    Minutes of trial court should show what rules were taken on the cause.
    9. Divorce <&wkey;>287 — Judgment of trial court would be amended to reserve jurisdiction of defendant’s reconventional demand.
    In suit for divorce, in which defendant filed a reconventional demand, and case was submitted on rule for judgment on the papers, judgment of court below, which was made absolute without mention of defendant’s reconventional demand, would be amended to reserve jurisdiction thereof, where court’s minutes left it doubtful whether merits of case were heard when divorce was granted, especially where it appeared that trial judge was inclined to believe that his judgment disposed of the whole case.
    Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.
    Suit for an absolute divorce by Mrs. Antonio Suarez, Jr., against Antonio Suarez, Jr., in which defendant set up a reconventional demand. Decree for plaintiff, and defendant appeals.
    Amended and affirmed.
    Oscar Schreiber and F. F. Teissier, both of New Orleans, for appellant.
    Paul L. Fourehy, of New Orleans (Warren J. D. Woodville, of New Orleans, of counsel), for appellee.
   By the WHOLE COURT.

On Motion to Dismiss.

LAND, J.

Plaintiff instituted suit against defendant for an absolute divorce on the ground that they had been living separate and apart for a period of seven years.

Defendant filed an answer in which he denied the separation, and set up a reconventional demand, praying- for the dissolution of the community, for one-half of all property belonging to said community, as well as for one-half of the rents alleged to have been collected and appropriated by his said wife. Subsequently defendant filed a supplemental answer admitting the separation, and also amending his reconventional demand in certain particulars.

Upon trial of the rule to take judgment upon the face of the papers the court below made the rule absolute and rendered judgment in favor of plaintiff, decreeing an absolute divorce between the parties. Defendant took an appeal from this judgment, returnable to the Supreme Court on September 8, 1924. The transcript was filed September 6, 1924. On September 9, 1924, plaintiff filed a motion to dismiss said appeal on the grounds: (1) That the judgment was pro confesso, and therefore unappealable; (2) that no new trial was asked by defendant in the lower court; (3) that no assignment of errors had been filed in this court by appellant. On September 11, 1924, appellant filed an assignment of errors, reciting his reeonventional demand, and alleging as error patent on the face of the record the fact that the trial judge, while granting plaintiff and appellee a judgment of absolute divorce, should have retained jurisdiction of defendant’s reconventional demand. Defendant and appellant prays that in due course the judgment appealed from be amended so as to retain jurisdiction of defendant’s reconventional demand, and that plaintiff be cast with costs of appeal.

1. The assignment of error was filed within 10 days from the filing of the record, and was in time to prevent the appeal from being dismissed, even though the motion to dismiss was made before the filing of the assignment of errors. State ex rel. Blackman v. Strong, 32 La. Ann. 173; C. P. art. 897.

2. An application for a rehearing or a new trial is not required before party east in suit may appeal. Levert v. Berthelot, 127 La. 1004, 54 So. 329; Connelly v. Southern Pacific Co., 140 La. 120, 72 So. 829; Grevemberg v. Roane, 133 La. 679, 63 So. 280.

3. A judgment rendered upon the face of the papers under the “Pleadings and Practice Act” is not a judgment by confession, from which no appeal lies, but is a judgment rendered upon material allegations of fact contained in the petition and not denied in the answer, and, upon allegations of fact in the answer, deemed and taken as true, for the purpose of disposing of plaintiff’s rule to take judgment upon the petition and answer. Necessarily in such a case the question of plaintiff’s right to a judgment upon the admitted facts is at issue, and presents a question of law reviewable by this court, if vested with jurisdiction over the subject-matter. The “Pleadings and Practice Act” does not deny to a defendant against whom a judgment is rendered on rule the right to an appeal, but provides that “no appeal.shall lie from such judgment dismissing such rule.” Act 300, 1914, § 1 (4), pp. 612, 613.

The rule, however, in this ease was referred to the merits, the case was fixed for trial, and evidence was adduced. The rule was made absolute, and judgment was rendered in favor of plaintiff. It is true that this judgment is silent as to the disposition by the trial judge of the reconventional demand; yet, as the rule was referred to the merits and evidence heard, the judgment of the lower court must be construed as rejecting defendant’s demand in reconvention. Defendant’s right to appeal is apparent.

The motion to dismiss is therefore overruled.

On Application for Rehearing.

PER CURIAM.

Appellee has filed an • application herein for a rehearing. The judgment rendered by us does not finally dispose of the case. Hence, under rule 14 of this court, section 5, 136 La. xii, a motion for a rehearing does not lie with respect to the decree rendered. See Gagneaux v. Desonier, 109 La. 460, 33 So. 561; Succession of Edwards, 34 La. Ann. 216. State v. White, 156 La. 770, 101 So. 136, on page 139. If this court should conclude that the judgment rendered herein is erroneous, it may set it aside at any time prior to the rendition of final judgment.

The application for a rehearing therefore is dismissed, without considering its merits.

On the Merits.

ST. PAUL, J.

. The ease is fully stated in the opinion of Mr. Justice LAND on the motion to dismiss. As therein said, the appellant (defendant) prays only that the judgment appealed from be amended so as to retain jurisdiction (by the lower court) of defendant’s reconventional demand.

I.

The “Pleadings and Practice Act,” No. 300 of 1914, pp. 611, 612, provides in section 1, subd. 4, that “at any time after the answer is filed the plaintiff may hy rule submit to the court the question of his right to a judgment upon the petition and answer,” provided, however, that, if there be a reconventional demand, the plaintiff shall not be entitled to a judgment for more than the difference between the amount found to be due the plaintiff and the amount of the re-conventional demand; “and in any such case, jurisdiction of the cause shall he retained hy the court as regards the balance of the plaintiff’s claim and the defendant’s reconventional demand.”

It is therefore clear that a reconventional demand does not come before the court at all on a rule for judgment under the act. So that the clause, “jurisdictimi of the cause shall he retamed hy the court, as regards," etc., does not mean merely that the court shall so provide in its judgment upon the rule. On the contrary, it is a declaration of the law itself that, notwithstanding the judgment on the rule, the court shall nevertheless still retain its jurisdiction of the cause for the purpose of passing in the reconventional demand.

n.

Ordinarily then there would be no occasion for the court to make any mention whatever of the reconventional demand in passing on the rule for judgment, since the reconventional demand is not before it at that time.

But in the case at bar the minutes of the court below are not clear as to exactly what occurred. In fact said minutes do not show (as they should) what rules were taken on the cause; and such rules appear only by docket entries and from copies brought up in the transcript.

Erom these docket entries and copies of rules we find that on April 7, 1924, plaintiff filed a rule to dissolve an injunction taken out by defendant. On May 1st that rule was referred to the merits, and the case specially fixed for trial on May 16th, when it was continued to May 18th, and ihen partially tried and continued as an oyen case.

Again, from the docket entries and copies of rules (but not from the minutes), we find that thereafter, to wit, on June 23d, plaintiff took another rule, to wit, a rule for judgment of divorce on the petition and answer, made returnable June 26th, on which day, the minutes read, after hearing pleadings and evidence, the rule was made absolute, and a judgment of divorce entered.

But the long and short of it is that hy fingering the transcript page hy page one finds that there were tico separate rules taken by plaintiff, one of which was referred to the merits and evidence taken thereon, but never passed upon by the court below; and the other is the rule for judgment which now is before us.

And, since we knew nothing of any rule to dissolve an injunction, we very naturally concluded that the rule which was referred to the merits was the rule with which we were concerned; especially as the minutes read that the judgment on the rule was rendered after hearing evidence.

In this connection we would remind the minute clerks of all courts that the law requires them to enter all motions (or at least their substance) in their minutes. C. P. art. 777. Had such been done in this case, we would have been saved some considerable trouble and annoyance; it is to be hoped that the law will not again be disregarded in that respect.

III.

As it is, the minutes still leave it doubtful whether or not the merits of the ease were heard on June 26th when the divorce was granted, since they declare that evidence was heard on that day; and therefore we think it prudent to amend the judgment of the court below by reserving the jurisdiction of that court as to the reconventional demand; especially as we are informed by affidavits, and by transcripts of proceedings since had in the court below, that the trial judge hesitates as to his having any further jurisdiction of the cause, and is inclined to the belief that his judgment disposed of the whole case. But we again repeat that ordinarily this would not be necessary. It was done in Tortorich v. Maestri, 146 La. 124, 83 So. 431, only because in that case the trial judge had actually rejected the reconventional demand.

Decree.

The judgment appealed from is therefore amended by reserving to defendant the right to proceed with his reconventional demand; and, as thus amended, said judgment is affirmed.

O’NIELL, O. J., absent.  