
    COMMERCIAL SECURITIES COMPANY, INC. v. Eddie MOYE, Jr.
    No. 5116.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 1972.
    Dissenting Opinion Dec. 6, 1972.
    Rehearing Denied Jan. 15, 1973.
    
      Bryan & Caraway, John F. Caraway, Harry V. Singreen, New Orleans, for plaintiff-appellee.
    New Orleans Legal Assistance Corp., Galen S. Brown, New Orleans, for defendant-appellant.
    Before REGAN, BOUTALL, and BAILES, JJ.
   BAILES, Judge.

This action was brought by plaintiff, Commercial Securities Company, Inc. against Eddie Moye, Jr., seeking judgment in the amount of $525.20, plus interest and attorney fees, allegedly representing the balance due on a promissory note executed by defendant.

In the First City Court of New Orleans, wherein this suit was brought, judgment was rendered in favor of plaintiff and against the defendant, as prayed for. Defendant has perfected this appeal. For the reasons hereinafter explained, the judgment of the trial court is reversed and the case remanded for further proceedings consistent with this opinion.

The chronology of the proceedings in the trial court are as follows:

May 10, 1971 — The original petition initiating this proceeding was filed;
May, 11, 1971 — Domiciliary service was made of this petition on the defendant;
May 17, 1971- — Defendant filed an exception of lack of “Procedural Capacity” ;
June 9, 1971 — Default judgment was rendered against defendant;
July 13, 1971 — Exception of lack of procedural capacity was fixed for trial on Thursday, July 22, 1971;
July 22, 1971 — Defendant filed his answer;
July 28, 1971 — Supplemental and amending petition was filed by plaintiff;
August 2, 1971 — Judgment rendered after trial;
August 4, 1971' — Application was made by plaintiff for new trial and order fixing hearing of this motion on August 16, 1971, signed by this court;
August 26, 1971 — Plaintiff filed motion for appeal from judgment dated August 2, 1971. Order of appeal entered by trial court, and bond, in the amount fixed by the court, filed.

We must notice, ex proprio motu, that the only appealable judgment rendered in this proceeding, as reflected by the record before us, is the default judgment signed by the court on June 9, 1971.

This brings us to a consideration of whether this is an appeal from the default judgment of the trial court signed on June 9, 1971, or as stated in the motion for the appeal, an appeal from a (so-called) judgment dated August 2, 1971.

We are constrained to hold that the only viable judgment rendered in this case by the trial court is the judgment dated June 9, 1971, for the reason the record herein is devoid of a motion for a new trial by either party or an order responsive to a hearing thereon, or any reference to any new trial having been granted by the court ex proprio motu. See C.C.P. Art. 1971.

Plaintiff-appellee’s counsel makes reference, dehors the record, to a motion of plaintiff wherein the trial court set aside the judgment of June 9, 1971, “for the purpose of hearing defendant’s exception of lack of capacity, but only for that purpose”. As stated by defendant in his appellate brief, the hearing of July 22, was to be on the exception only. Upon defendant’s failure to prove (facts alleged in) his exception within a delay granted by the trial court, the court on August 2, rendered a new judgment which in effect merely reinstated the June 9, judgment.

Such a proceeding is totally unknown to the civil procedure of this State. There is no basis, foundation or authority for a trial court (if indeed such was actually done) to set aside a judgment which it has rendered, save and except through the procedural vehicle of a new trial.

Even though the defendant in his motion for this appeal specifically referred to the judgment dated August 2, 1971, as being the judgment sought to be appealed, it is quite clear that he was dissatisfied with the result and judgment reached by the trial court, and obviously he was seeking relief from such judgment.

In King v. King, La.App., 253 So.2d 660, 662 (1971), citing Fruehauf Trailer Co. v. Baillio, 252 La. 181, 210 So.2d 312 (1968) and Kirkeby-Natus Corp. v. Campbell, 250 La. 868, 199 So.2d 904 (1967), the court stated “that where the appellant exhibits intent to appeal an unfavorable judgment on the merits, the appeal will be maintained. The result reached in each of these cases is predicated on the well established principle that appeals are favored in law, must be maintained wherever possible, and will not be dismissed for technicalities. * *

We find reasonable grounds to draw sufficient analogy between the cases cited supra and the instant case to be justified in following their rationale and in our holding that the judgment appealed from herein is the judgment dated June 9, 1971.

In view of the judgment above referred to having been signed on June 9, 1971, and the order of appeal having been signed on August 26, 1971, the question of whether this appeal is timely arises. We note that domiciliary service of plaintiff’s petition was made on the defendant on May 11, 1971, and no notice of judgment was served on defendant. Such notice of judgment was required by the C.C.P. Art. 4898 which provides:

“Notice of judgment shall be served on a defendant against whom judgment is rendered if the citation was not served on him personally, and he failed to answer.
“Notice of judgment need not be given in any other case.”

The date of the service on the notice of judgment determines the date for the commencement of the running of the delay for the application for a new trial. Therefore, it follows that as no notice of judgment was served on the defendant, the time for the commencement of the ten day period within which a devolutive or sus-pensive appeal may be granted has not begun to run because the delay within which to apply for a new trial has not begun its tolling, all as provided for in C.C.P. Art. 5002.

Accordingly, we conclude that the appeal was timely moved for by the appellant and the order granting the appeal was proper.

We pass now to the validity vel non of the judgment rendered against the defendant on June 9, 1971. In doing so we must point out that the defendant did not file an answer within the delay provided for by C.C.P. Art. 5002, but within such delay he did file the dilatory exception which he denominated a “Dilatory Exception of Lack of Procedural Capacity” the basis of which is the alleged minority of the defendant.

C.C.P. Art. 5002 provides:

“The delay for answering shall be stated in the citation. This delay shall be five days, exclusive of legal holidays, after service of citation on the defendant, except when the citation is served on a defendant through the secretary of state, in which event this delay shall be fifteen days after such service as to all defendants.
“A defendant shall incorporate in his answer all of the exceptions on which he intends to rely. No prior default is necessary, and judgment may be rendered as provided in Article 4896. Notice of the rendition of judgment is not necessary, except as provided in Article 4898. The delay for answering garnishment interrogatories shall be five days, exclusive of legal holidays.
“A new trial may be applied for within three days, exclusive of legal holidays, of the date of judgment or of the service of notice of judgment when necessary.
“A devolutive or suspensive appeal to the proper appellate court may be granted if applied for within ten days after the expiration of the delays for applying for a new trial, or within ten days of the denial of a new trial.
“The suspensive appeal bond, as required by the applicable provisions of Article 2124, must be filed within the delays allowed above for a suspensive appeal.
“The devolutive appeal bond, as required by the applicable provisions of Article 2124, must be filed within the delays allowed above for a devolutive appeal.”

The question which then arises from the stated requirement of Article 5002 is whether a default judgment is properly entered where defendant files no answer but does file a dilatory exception as stated above.

We find that the requirement of Article 5002 that a defendant incorporate in his answer all of the exceptions on which he intends to rely does not preclude him from filing an exception without incorporating the same in his answer and until the exception is properly disposed of by the trial court a default judgment is premature and invalid. However, it is quite clear from the provisions of Article 5002 that should the defendant file exceptions without incorporating same in his answer he is thereafter precluded from filing an answer. In other words, his defense must stand or fall, succeed or fail, on the sufficiency of the exception.

In the instant case, the dilatory exception of the defendant, which on June 9, 1971, had not been ruled on by the trial court, prevented the rendition of a valid default judgment against him.

For the foregoing reasons, we hold that all proceedings concluded in the trial court subsequent to the rendition of the default judgment of June 9, 1971, are null, void and of no effect, and likewise, for the reason that the default judgment of June 9, 1971 was prematurely rendered, said judgment is annulled, cancelled and set aside, and this case is remanded to the trial court for the restricted purpose of the trial court hearing evidence and passing on the merits of the dilatory exception of whether defendant has the capacity to be sued and to stand in judgment herein.

Plaintiff is cast for all cost of this appeal. Adjudication of all other costs to await final judgment on the exception.

REGAN, J., dissents with written reasons.

Reversed and remanded.

REGAN, Judge

(dissenting).

I respectfully dissent from the opinion of the majority. The essence thereof is that if an exception is filed in First City Court before a default judgment is taken against a defendant, the plaintiff may not proceed to take a default judgment and, on the other hand, the defendant is precluded from filing a subsequent answer and is relegated to the defense stated in his exception as his sole remedy.

The majority cited no authority in support of this proposition, and after exhaustive research and study of the statutes and jurisprudence of Louisiana the writer can fairly say there is no such authority for the conclusion reached in the majority opinion.

Even a cursory reading of Article 5002 of the Code of Civil Procedure discloses that the delay for answering suits filed in the First City Court is five (S) days, exclusive of legal holidays. This article further provides that a “defendant shall incorporate in his answer all of the exceptions on which he intends to rely.” It is thus obvious that in the absence of an answer there is no procedural vehicle which authorizes the filing of an exception in First City Court in vacuuo unsupported by an answer to the merits of the plaintiff’s suit.

The philosophical justification for such a conclusion is readily observable from the comment to Article 5002 which states that while the general procedure followed in district courts is to be followed in First City Court, the article in question makes the “essential” change by requiring that the exceptions be filed with the answer. The obvious purpose of this requirement is to avoid, in cases under $1,000.00, the arduous and time consuming task of arguing innumerable exceptions prior to the time when the defendant can be compelled to answer in order for issue to be joined and the case set for trial on its merits.

The author hereof fully adheres to the philosophical concept that procedure should be relegated in importance to substance when there is a conflict between the two. On the other hand, a subordination of adjective to substantive law should not be effected when such subordination does violence to both the wording and the purpose of the procedural statute construed. It is clear that the majority opinion in no way squares with either the wording or the substance of Article 5002 of the Code of Civil Procedure and this reason alone calls for a dissent therefrom.

The record reveals that after the solitary exception was filed in the record of the proceeding, the plaintiff proceeded to confirm a default judgment in conformity with law. Thereafter, there was a series of actions by counsel and by the trial court which have no basis in law whatsoever and could not result in a viable judgment. It should be noted that the defendant endeavored to prosecute this appeal from the second judgment of the trial court, which attempted without legal authority to reinstate its original judgment. If the judgment appealed from is an absolute nullity and a legal non-entity, it follows as a matter of course that an appeal therefrom is legally impossible. Consequently, the disposition of this case should be a dismissal of the defendant’s appeal in this Court.

Finally, the author cannot agree with the ultimate disposition of the matter by remanding it to the lower court for further proceedings on the defendant’s exception of lack of procedural capacity to be sued. The record reveals that a hearing, whether valid or not, was in fact already held by the lower court. In this hearing, the defendant admitted that the purchases were made for necessities of life, in the nature of household furnishings and similar items. While asserting that he was below the age of majority, he neither produced a birth certificate nor the testimony of his mother, with whom he admitted he was living in the City of New Orleans, and who was obviously able to appear and testify in his behalf to establish his age in the absence of the birth certificate. Furthermore, the trial court afforded him ample opportunity to obtain a copy of his birth certificate and only then did the trial judge endeavor to reinstate his original default judgment. If the theory of the majority opinion is correct, the substance of this hearing is not a legal nonentity, and it is a glaring contradiction to remand the matter to the lower court for the purpose of restating testimony by which the defendant admittedly acknowledged that the purpose of the loan was for the purchase of necessities. The defendant made these statements under oath in open court, and it is obvious that he cannot now change his testimony without placing himself in jeopardy of committing perjury.

Since the majority has chosen to remand the case to the lower court, it is unlikely that the Supreme Court will grant writs from this opinion because this judgment is not what it deiiominates as “final.” Further, it is likely that once the case reaches the trial court again the matter will be disposed of on an amicable basis and this opinion will stand in the lawbooks without contradiction as quick-sand for the young and inexperienced practitioner who has not yet learned to look beyond the four corners of a judicial opinion to examine the reasoning upon which it is based. Consequently, one of the purposes of this dissent is to serve as a beacon to mark a hidden shoal in the vast ocean of legal authorities to prevent the unwary or inexperienced legal navigator from destroying the keel of his forensic vessel thereon.

For the foregoing reasons, I must file this dissent. 
      
      . See Mexic Bros., Inc. v. Sauviac, La.App., 191 So.2d 873 (1966), where the court stated that an exception must be incorporated into the answer under Code of Civil Procedure Article 5002 and went so far as to indicate that the exception thus filed formed a part of the answer. See also Aswell v. United States Fidelity & Guaranty Co., La.App., 244 So.2d 243 (1971) where the court stated that an answer filed after the taking of a judgment is of no consequence and lias no legal effect whatsoever.
     