
    MEYER v. ESTEB.
    Nos. 3725, 3857.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 8, 1953.
    On Rehearing Oct. 6, 1954.
    Rehearing Denied Nov. 18, 1954.
    Writ of Certiorari Denied Jan. 10, 1955.
    
      Franz Joseph Baddoclc, Baton Rouge, for appellant.
    W. Frank Giadney, Baton Rouge, for appellee.
    No. 3725.
   LOTTINGER, Judge.

The plaintiff, Dr. Harry Meyer, sued the defendant, Ernest N. Esteb, for the sum of $185, which sum represented the balance due for professional services rendered the defendant’s wife during the months of October and November, 1950. The suit was filed on August 2, 1952. On January 23, 1953, a preliminary default was entered, which was confirmed and made final by judgment rendered on February 11, 1953.

On March 13, 1953, the defendant filed a motion for rehearing and/or new trial wherein it was alleged that the judgment rendered on February 11, 1953, was obtained through fraud or ill practice and further that the judgment was contrary to the law and the evidence because it allowed interest from December 16, 1950, and also on the ground that there was no affidavit or sworn statement of the account annexed to the petition.

On April 27th, the trial judge rendered judgment denying the motion for a new trial or rehearing and at the same time handed down the following:

“On April 20, 1953, the Court for written reasons assigned overruled defendant’s motion for a rehearing or a new trial and stated in the written reasons that the record herein showed personal service on the defendant. Since that time the return of the sheriff has been amended showing that domiciliary service was made on defendant. The record shows that Notice of Judgment herein was served on defendant on April 20, 1953. For these reasons defendant’s motion for suspensive appeal is timely made.”

The defendant’s motion for a new trial and/or rehearing is supported by affidavits executed by himself and his attorney. The pertinent part of defendant’s affidavit reads as follows:

“1.
“That on or about August 6, 1952, affiant brought the papers served upon him’in the suit of ‘Dr. Harry Meyer v. Ernest N. Esteb’ No. 42,714 of the 19th Judicial District Court, Division ‘A’, to Franz Joseph Baddoclc, an attorney at law in Baton Rouge, and thereby authorized the said attorney to answer the suit and file a reconven-tional claim for damages.
“2.
“That within a delay of about 10 or 15 days thereafter, affiant received a phone call from Mr. Frank Gladney, Attorney for plaintiff in the above suit, who stated to affiant, in essence, the following: That rather than having suit, why didn’t affiant come to the office of Attorney Gladney and talk the matter over.
“3.
“That your affiant specifically alleges that he notified attorney Gladney at the time of the above phone conversation, that the matter had been placed in the hands of Attorney Baddock for defense, and that accordingly the matter was out of affiant’s hands.
“4.
“That on or about 30 days following the time that Attorney Gladney telephoned affiant, your affiant alleges on information and belief that Attorney Gladney telephoned affiant’s wife to inquire what she intended doing about the matter of suit, and, on information and belief, your affiant alleged that his wife notified Attorney Gladney that the matter was out of her hands, and in the hands of Attorney Baddock.
“5.
“That your affiant alleges on oath that Attorney Gladney never notified affiant that ’he intended taking a default judgment * * * that Attorney Gladney never notified affiant by letter, or phone, or by any means that he would take a default judgment against affiant.
“6.
“That other than the above communications from Attorney Gladney, your affiant was notified by Attorney Gladney that a judgment had been taken against him on Thursday', March 12, 1953.”

The pertinent part of the affidavit executed by defendant’s attorney reads as follows :

“1.
“That within ten days of August 4, 1952, and on or about August 6, 1952, one Ernest N. Esteb brought to affiant’s office the papers which had been served on him in the case of Dr. Harry Meyer v. Ernest N. Esteb, #42,714, Division A, 19th Judicial District Court’.
' “2.
“That affiant agreed to represent the said Ernest N. Esteb and, within 24 hours of the papers being placed in af-fiant’s hands, affiant contacted Attorney Gladney by phone and disclosed the attorney relationship between affiant and the said Esteb. That on this occasion, Attorney Gladney specifically af-: forded affiant ‘whatever time he needed’.
“3.
. “That subsequently, other discussions were had with Attorney Gladney which centered on the problem of a possible large counterclaim, or recon-ventional claim for damages to be filed in behalf of Ernest N. Esteb, against plaintiff; That these discussions are reflected in a letter directed to Attorney Gladney by affiant, under date of September 11, 1952.
“4.
“That although Attorney Gladney insisted on suit remaining in the 19th Judicial District Court, Attorney Glad-ney always, at all times, led affiant to believe that there was no occasion or . rush in the above suit; that on any and • all occasions when discussions were had with Attorney Gladney, affiant was led to believe that- as much time would be allowed affiant, as affiant wanted, -
“5.
“That affiant swears upon oath, that attorney Frank Gladney at no time indicated to affiant, either by letter, phone conversation, suggestion, or otherwise, that a default was contemplated against the said Ernest Esteb.
“6.
“That affiant’s first knowledge of the fact that attorney Frank Gladney had confirmed a default judgment against Ernest Esteb, was upon receiving a call from the said Esteb, on Thursday, March 12, 1953.”

The letter referred to in the above quoted affidavit of the defendant’s attorney is attached to plaintiff’s brief and a reading thereof shows that it supports the allegations concerning it. The record also clearly substantiates the recitals of the above affidavits in that at no time was either the defendant or his attorney notified that a default was contemplated. Indeed, in plaintiff’s brief we find the following admission:

“Undersigned counsel promptly conveyed this determination of plaintiff to proceed with his suit to the Honorable counsel for the defendant, Mr. Esteb. We again assured Mr. Baddock that he would be allowed any reasonable amount of time to file his pleadings.
“We were unable to get any statement from Mr. Baddock as to when his answer would be filed, and after repeated complaints from attorneys for our client in New Orleans, we entered a motion on January 23, 1953, for a transfer of this case to Division ‘D’ and for the entry of a preliminary default.” (Italics ours.)

It is apparent from the ruling of the Trial Judge that the motion for new trial or 'rehearing which was filed on March 13, 1953, was more than-one month after the judgment -had been signed on February 11, 1953. The District Judge was powerless to amend or annul the judgment on the motion for a new trial1 because it was not timely filed. Article 556 of the Code of Practice provides the procedure whereby definitive judgments may be revised, set aside or reversed:

1. By new trial;
2. By appeal;
3. By action of nullity;
4. By recision.

This last mentioned can only be exercised by minors or persons who were absent when judgment was rendered against them. It is obvious that the defendant is seeking a new trial although he asks that the judgment be decreed a nullity in his motion. It is well settled that a motion for a new trial must he filed within 3 days after the rendition of judgment, except in cases where the judgment was not signed.

This- Court held in the case of McClel-land v. District Household of Ruth, 151 So. 246, that the Trial Court was without authority to set aside a judgment which was obtained on confirmation of default and was obviously an absolute nullity and to grant a new trial where three calender days had expired from the rendition of the judgment when the motion was filed by defendant.

Articles 604 to 608 of the Code of Practice contain the provisions of our law relative to the annulment of judgments. Under these Articles, the causes for which the nullity of a judgment may be demanded fall in two classes, vices in' form of proceedings and vices which go to the merits of the case. The vices of form are contained in Article 606 and are absolute nullities and are subject to collateral attack in proper proceedings at any time.

Article 607 states the causes for nullitj which pertain to the merits of the case.

Under the provisions of Article 608:

“The nullity of judgment may be demanded from the same court which has rendered the same, or from the court of appeal before which such judgment was taken, pursuant to ttie provisions hereafter expressed.”

and Article 609 provides when the nullity can be demanded, on appeal, which reads:

“The nullity can be demanded on the appeal, only while the, appeal is still pending, and when the nullity is apparent on the face of the records.”

The party seeking the nullity of a judgment before the court which has rendered the same must bring, his action by means of a petition; and the adverse party must be cited to appear as in ordinary suits.

The defendant in this 'case by his motion for new trial which was not timely filed, asks us to nullify the judgment because it was obtained by fraud and ill practices although his motion was not timely filed. We cannot consider the affidavits attached to his motion, as well as the letter, because they did not come into this suit until after the default was confirmed and the judgment signed. For this evidence to be available to the defendant and as a basis for cause of action for nullifying the judgment against him, they would have to be used in a direct proceeding of nullity by petition and citation to the defendant under Article 610 of the Code of Practice and cannot be urged in a motion for a new trial belatedly filed. Wallace v. Martin, La.App., 166 So. 874; Code of Practice, Article 556; McClelland v. District Household of Ruth, La.App., 154 So. 246; Louisiana Law Review, Vol. 3, page 623.

In the cases cited by appellant and urged in support of his motion for new trial, the nullity urged in each of the suits was by direct action to annul the judgment and not urged in a motion for new trial untimely filed. If these grounds had been urged in a motion filed within three days after the rendition and signing of the judgment, thej could be considered, but since the motion was not timely filed these grounds can be urged only in a direct action of nullity. Cutrer v. Cutrer, La.App., 169 So. 807; DeFrances v. Gauthier, 220 La. 145, 55 So. 896. The motion for new trial was timely filed. There is nothing under our law to prevent a defendant who has suffered a default judgment to be rendered against him and which is subject to be set aside or annulled under the grounds of Article 607 from appealing from the judgment rendered against him and simultaneously instituting a suit in which its nullity can be urged. State ex rel. Pelletier v. Sommerville, Judge, 112 La. 1091, 36 So. 864.

The other ground urged for the reversal of the judgment and which we have a right to consider on this appeal, is the weight and sufficiency of the evidence adduced on the trial of the confirmation of the default to support the judgment and is one which deserves our consideration. The preliminary default is passive joinder of issue and equivalent to answer containing general denial or special denial of each material allegation of fact in plaintiff’s petition, and a confirmation of default or attempt to confirm preliminary default is trial of case on merits on issue joined by preliminary default. Code of Practice, Articles 312, 360, 314; Russo v. Aucoin, La.App., 7 So.2d 744.

The plaintiff’s suit is for professional services rendered by him to defendant’s wife, in which it is alleged that it was at defendant’s special insistence and request that said services were rendered during the months of October and November, 1950. The only proof offered on the confirmation of the default was the original petition and the affidavits filed therein and the return of the Sheriff of the Parish of East Baton Rouge showing service on the defendant on August 4, 1952, and the entry of a preliminary default herein on January 23, 1953. The account is marked “P-1” in red pencil, is dated 7-25-52, and was first made out to Mrs. Ernest N. Esteb, and after being typewritten, the “s” was stricken with pen to make it appear that the account was to Mr. Ernest N. Esteb. The invoice is for professional services:

10-28-50 Office $ 10.00
11-16-50 Surgery 200.00-
$210.00
Paid on account
11-23-50 $15.00
12-20-50 5.00
8-23-51 5.00
$25.00
Balance Due $185.00

The affidavit attached to the account is marked “P-2” and reads as follows:

“State of Louisiana
Parish of Orleans
“Be it remembered that on this 28 day of July, 1952, personally appeared before me, the undersigned authority,
Dr. Harry Meyer, who, being duly sworn,' did depose and say:
“That he is a practicing physician of New Orleans, La. and that he makes this affidavit.
“That the attached account is just and correct within the knowledge of affiant; that the items thereon stated and composing the said account represent services rendered to defendant’s wife at defendant’s special instance and request; that credit has been duly ■given for all payments and just and lawful' offsets to which said account is entitled, as thereon stated.”

The above was all of the evidence offered on the confirmation of the default except the petition and citation, the returns of which were subsequently corrected to show that domiciliary service was made on the defendant and not personal service. The judgment does not recite that the plaintiff had personally appeared and proved his demand. The question, therefore, to be decided by us is whether or not professional services rendered by a physician to defendant’s wife at his insistence and request can be considered as such an open account that could merely be proved by a statement showing the amount due him for a visit to his office without specifying what the consultation was for or the kind of services rendered except in general terms. This record is barren of any proof whatever to show what services the plaintiff rendered to defendant’s wife at his office on October 28, 1950, or'what surgery was performed on November 16, 1950, other than the statement and affidavit referred to above.

C. P. Art. 312, states as follows:

“If, two days (whether judicial or non-judicial but exclusive of Sundays and legal holidays) after the first judgment has been rendered, the defendant neither appear nor file his answer, definitive judgment will then be given for the plaintiff, provided he prove his demand. This proof is required in all" cases, and when the demand is for a sum due on an open account, then an affidavit of correctness thereof, before any. competent officer* shall be prima facie proof.”

The term, “open account” is defined by Am.Juris. vol. 1, pp. 265-266, and particularly the following, under paragraph 3, on page 265 in said volume under Accounts and Accounting:

“The term ‘open account’ means, ordinarily, an account based upon running or concurrent dealings between the parties which has not been closed, settled, or stated, and in which the inclusion of further dealings between the parties is contemplated. But the term has also been construed as applicable to a transaction some of the terms of which have not been agreed upon, such as the price to be paid or the time for payment.”

In dealing with the prescription of three years, we find under LSA-C.C. Art. 3538, that the accounts of physicians, surgeons and apothecaries for visits, operations and medicines are prescribed by three years and the said article uses the language on all other accounts, thereby indicating that unless there is a contract that the services rendered by a physician is to be considered as an open account. We are therefore convinced that this is nothing more- than an open account and that the plaintiff was entitled to prove same by statement and affidavit as was done in this case. Furthermore, if the defendant was not satisfied, with the account as rendered, it was in his power to ask for an itemized statement in accordance with his wishes before default was entered and confirmed. The account, as rendered and produced at trial of the case, in the absence of any objection, fully appraised the defendant and the. court what plaintiff was demanding. See F. Strauss & Sons v. Economy Cash Grocery, 18 La.App. 454, 138 So. 191.

Defendant’s next complaint deals with the rules of the Nineteenth Judicial District Court, of the Parish of East Baton Rouge, as well as with LSA-R.S. 13:3345, which is as follows:

“Every pleading subsequent to the original petition, every written motion and every written notice, appearance, demand, and similar paper shall be served upon each of the parties affected thereby through his attorney of record, or on the party, if not represented by an attorney, but no service need be made on parties in default for failure to appear except pleadings asserting new or additional claims for relief against them.”

According to the rules of the Nineteenth Judicial District Court, Section 2 of Rule 1, provides for four divisions, designated as A, B, C and D, three of which handle' all civil matters and are known as Civil Divisions and one which handles criminal matters and known as the Criminal Division. Section 3 of Rule l, provides that the court shall be at recess during the months of August and September of each year, and according to Section 4 of Rule 1, Division A, the division to which this case was allot-ed, was to be the Criminal Division from September 1, 1952, through February, 1953. Defendant further states that when this suit was filed in August of 1952, it was al-loted to the division which was to be, the Criminal Division from September 1, through February. In this connection Section 1, of Rule 5 was applicable, which provides as follows:

“ * * * Provided, however, that whenever a case has been seriously al-loted to a division of the court which is then currently handling criminal matters as the Criminal Division, the case shall, upon written motion of counsel for any party, be transferred from that division to the court of the division which was last designated as the Criminal Division under these rules. The Clerk shall provide forms for such motions.”

Defendant further complains that nothing further was done until January 23, 1953, when plaintiff’s attorney transferred the suit from Division A to Division D, without notice, either to defendant or to defendant’s counsel according to LSA-R.S. 13:3345. ■ Subsequently, on February 11, 1953, plaintiff confirmed judgment by default and defendant claims that since he was not given notice according to said statute as hereinabove referred to, that the said default and confirmation rendered by said court is null and void. He has cited to this court, Alonso v. Bowers, 222 La. 1093, 64 So.2d 443, which involves said act. It is our interpretation of the portion of Rule 5, as hereinabove stated that all of the cas'es alloted to the Criminal Division are not automatically transferred to the other divisions, sitting as Civil Divisions, but are only transferred upon written motion of counsel for any party. That being the case, we are inclined to believe that this defendant was entitled to the notice as provided in the statute above referred to and therefore conclude that the judgment by default, as well as confirmation as found in this record are null on the face of the record.

Therefore for the above and foregoing reasons, the judgment appealed from is reversed and the case remanded and that a new trial be had. The cost of this appeal to be borne by appellee.

Judgment reversed and case remanded.

. Appeal from the Nineteenth Judicial District Court, Parish of East Baton Rouge, Honorable Coleman Lindsey, Judge.

No. 3857

On Rehearing

CAVANAUGH, Judge.

The facts and issues in this case are fully stated in our original opinion.

A rehearing was granted on application of plaintiff, appellee. The Baton Rouge Bar Association, Inc., through its Rules of Court committee, has filed a brief amicus curiae.

The grounds urged by plaintiff, appellee for a rehearing are:

(1) That the Court erred in holding that a motion to transfer, filed pursuant to Section 1 of Rule 5 of the rules of the ‘Nineteenth Judicial District Court, is such a pleading or written motion as must be served on a defendant in accordance with LSA-R.S. 13:3345;

(2) A judgment rendered against á party in default (where such service has not been made) is “null on the face of the record”. .

That portion of Rule 5, Section 1, of the rules of the Nineteenth Judicial District Court, with which we are concerned, reads as follows:

“ * * * Provided, however, that whenever a case has been previously alloted to a division of the Court, which is then currently handling criminal matters as the criminal division, the case shall, upon written motion of counsel for any party be transferred from that division of the Court to the division which was last designated as the criminal division under these rules. The Clerk shall provide forms for such motion.”

We held on the original hearing that it was apparent on the face of the record, that defendant did not have any notice of the transfer of the case from the criminal division to another division, sitting as a civil division, the transfer could not legally be made under LSA-R.S. 13:3345. This section of the Revised Statutes reads as follows:

“Every pleading subsequent to the original petition, every written motion and every written notice, appearance, demand, and similar papers shall be served upon each of the parties affected thereby through his attorney of record, or on the party, if not represented by an attorney, but no service need be made on parties in default for failure to appear except pleadings asserting new or additional claims for relief against them.”

Service of petition and citation were made on the defendant in this case by domiciliary service, and the default entered and later confirmed was based on that service. Since the defendant was in default for failure to appear and no new, or additional claim for relief was made against him by the motion to transfer, it was not necessary for him to ■ have notice of the transfer. This is evident by the exception made in the statute, that portion of the section which reads:

“ * * * but no service need be made on parties in default for 'failure to appear except pleadings asserting new or additional claims for relief against them.”

The case of Alonso v. Bowers, 222 La. 1093, 64 So.2d 443, cited and relied upon by defendant, appellant, is not apposite here because the pleading involved was an amended petition, in which the amount claimed and sued for was increased and the plaintiff in that case was asserting_a new or an additional claim.

On reconsideration of the question and for the above reasons, our decree reversing the judgment was erroneous. Unless there are other substantial grounds contained in the record for reversing the judgment, the judgment of the District Court will have to be affirmed.

The defendant, appellant has vigorously argued in this Court on the second hearing, that the delay for applying for a new trial, or rehearing from a default judgment based on domiciliary service commences to run from the time the defendant has notice of the judgment and does not run from the time the judgment is signed. In other words, defendant, appellant contends that he had three days within which to file a motion for a new trial from the date he had notice of the judgment. He argues that since notice of judgment is a prerequisite before execution based on a judgment obtained by domiciliary service to commence the running of the delay for an appeal under Articles 575 and 624 of the Code of Practice, and that notice of judgment under Article 543 of the Code of Practice is prerequisite before the delay for applying for a new trial, rehearing or an appeal commences to run, it should also be under Article 558. We are asked to determine once and for all when the delay commences to run for applying for a new trial or a rehearing when a judgment is based on domiciliary service.

The present law providing for the delays for applying for a new trial or rehearing is contained in LSA-R.S. 13:4213, which reads as follows:

“An application for a new trial or a rehearing in a civil cause in the district court must be filed: (1) in Orleans Parish, before the judgment is signed; (2) in all other parishes, either before the judgment is signed, or within three days of rendition of judgment, if the latter has been signed before filing the application.”

The Revised Statutes did not make any new law and the Courts at the time they were adopted were of the opinion that a judgment was not rendered until it was signed, and that delays for applying for new trials, r’ehearings or for appeals did not commence to run until the judgment was signed.

Article 575 of the Code of Practice, which covers the subject of a suspensive appeal, delay, bond and surety, provides:

“If the appeal has been taken within ten days, not including Sundays, after the judgment has been notified to the party cast in the suit, when such notice is required by law to be given, it shall stay execution and all further proceedings, until definitive judgment be rendered on the appeal; * * *.

“Whenever judgment has been rendered in a suit in which the defendant has had personal service to appear and file his answer, or when judgment has been rendered in a case after answer filed by the defendant, or by his counsel, the party cast in the suit shall be considered duly notified of the judgment by the fact of its being signed by the judge.” As amended, Acts 1876, No. 24; 1890, No. 45; 1926, No. 289.

The execution referred to in the above Article and which notice was required to precede is that provided for in Article 624 of the Code of Practice which states:

“Respecting judgments subject to appeal, the party in whose favor one is rendered can only proceed to the execution after ten days, counting from the notification which he is obliged to make to the opposite party, if the latter has not appealed from the judgment - within this interval * * *; provided, that whenever an answer 'has been filed in a suit, in which the defendant has had personal service made upon him tp appear and file his answer, or when a judgment has been rendered in a case after answer filed by the defendant, or by the counsel, the party cast in the suit shall be considered duly notified of the judgment, by the fact, of its being signed by the judge * *

All of the above provisions of the law, which we have quoted hereinabove, relate to notice of judgment before appeal and execution and none of them have anything to do with the subject of .a new trial or rehearing.

Defendant has cited Article 543 of the Code of Practice as amended, which provides that all judgments- must be rendered, read and signed by the judge in Open Court; and provides further that where District Judges hold Court in a Judicial District composed of more than one parish they shall have the right to render, read and sign judgments in Open Court in any parish in their Judicial District in any case arising in any parish in said district, which judgment shall be forwarded to the Clerk of Court of the parish in which said case originated, who shall record the same in the minutes of said Court and shall immediately notify the parties, or their counsel, that the legal delays for making a motion for a new trial, or taking an appeal, shall not commence to run until the service by the Sheriff of the notice of judgment issued by the Clerk.

This Article also provides that by making a request in writing and by depositing a small fee to cover mailing and postage, any party, or attorney of record, in any cause, who, or which, is a nonresident of the parish in which the cause is pending, may request the Clerk of Court of said parish to send said party, or attorney, written notice by registered mail of the rendition of any judgment in said cause and the legal delays for making a motion for new trial, or for taking an appeal, shall not commence to ran in such cases until three days after said Clerk has deposited in said mail, addressed to said party, or counsel, the aforesaid notice of judgment.

Defendant contends that this Article, Art. 543, with Articles 558 and 563.3-563.5 (now LSA-R.S. 13:4262-4264) of the Code of Practice, should all be construed together and for the sake of uniformity the Court should establish a definite rale fixing the delay to run for applying for a motion for a new trial, or rehearing, where the judgment is based on domiciliary service from the time the defendant has notice of the judgment. It seems strange to us why the legislature made provision for notification of decrees when rendered in different parishes of a Judicial District and also provides for special notice for an attorney or defendant not residing in the particular parish where the case was tried to have notice under special circumstances, before the delay commenced to run for applying for a new trial or rehearing but not to provide notice of judgment where a litigant has never been personally served with a petition or citation. But that is the law and we can’t change it by judicial construction.

The courts of this State have held that domiciliary service is due process. Brannin v. Clements, La.App., 142 So. 621.

The Court of Appeal, Parish- of Orleans, stated the reason why the lawmaker-thought notice of judgment was necessary before execution:

“The requirement that notice be given before execution may issue results from a recognition on the part of the lawmakers of the fact that where the litigation has been commenced only by domicilary service, there is the possibility that the defendant has not actually received the citation and that, in fact, he may have no knowledge that he has been sued and that a judgment has been rendered against him. The lawmakers believed that, because of this possibility, such a defendant should be actually notified that such a judgment has been rendered against him in order that he might avail himself of one of the methods of revision, reversal or annulment referred to. The requirement that such notice be given was not intended to give to the defendant any right to set up any defense which should have been resorted to prior to judgment but to give him only those rights which are accorded to any defendant against whom there has been rendered a judgment which is final so far as the court which rendered it is concerned, and which may be ‘revised, set aside or reversed’ only in one of the methods set forth by law.”

Metairie Bank in Liquidation v. Lecler, 4 So.2d 573, 575.

It is noted that the .requirement of notice be given before execution and does not intimate that a defendant is entitled to notice of judgment before the delays for a new trial, or a rehearing, commence to run. Judge McCaleb in Strange v. Albrecht, La.App., 176 So. 700, 702, speaking of the notice required to be given to judgment debtors and approving our ruling in State ex rel. Mitchell v. Cohn Flour & Feed Co., 17 La.App. 108, 135 So. 385, 387, under Act No. 289 of 1926, said in that case:

“Counsel for mover and appellee, however, .criticizes the result reached in the Mitchell case and maintains that the holding there entirely overlooks the fact that the sole requirement for notice of judgment is to be found in article 624 of the Code of Practice and not in article 575. In other words, it is claimed that article 575 provides for notice of judgment only in cases where notice is required by law to be given; that there is no declaration contained in article 575 which compels the giving of such notice; and that the only stipulation for notice is found in article 624, which was not re-enacted by Act No. 289 of 1926. We believe that this argument is unsound as it attempts to force a strained construction of the provisions of Act No. 289 of 1926, and disregards the obvious purpose for which the statute was passed. While it is true that Act No. 289 declares that notice of judgment is necessary only in cases where such notice is required by law to be given, it further sets forth that: ‘Whenever judgment has been rendered in a suit in which the defendant has had personal service to appear and file his answer, or when judgment has been rendered in a case after answer filed by the defendant, or by his counsel, the party cast in the suit shall be considered duly notified of the judgment by the fact of its being signed by the judge.’
“This latter declaration is an enumeration of the cases in which notice of judgment is not necessary, and it would seem to follow that in all other cases a notice must be given. To hold that it was not the intention of the Legislature to provide for notice of judgment, where the same was taken by default on issue joined by domiciliary service, would be to render the article without effect, as it must be borne in mind that prior to its passage a notice of judgment was unnecessary in all cases.
“It is well recognized that, in cases of statutory construction, the court will presume that the Legislature knew and was well acquainted with its prior enactments. We must therefore assume that the lawmaking body was fully informed that, under the law as it stood prior to 1926, a notice of judgment was not required in any case. That it was its intention to provide otherwise is plainly evidenced by the passage of Act No. 289 of 1926. This was the view of the court in the Mitchell case, and we fully concur in the reasoning justifying the conclusion reached there.”

The above case likewise had to do with notice of judgment based on domiciliary service prior to execution.

In the case of Gulf States Finance Corp. v. Colbert, 61 So.2d 626, 629, decided by this Court after the adoption of the Revised Statutes in 1950, made the unqualified statement that it is the established jurisprudence of this State:

“It is now well established in the jurisprudence of this State that the provision for notice of judgment upon the party cast in a judgment of default whenever such judgment was based on domiciliary service is for the benefit of the judgment debtor, in order to apply for a new trial, a rehearing or for an appeal, but it' is likewise well settled that the judgment debtor may waive .such benefit or privilege like any other benefit or privilege. The following facts as contained in the record, to our mind clearly shows that the defendant' waived the notice of judgment, if in truth and in fact she had not been served with a notice of judgment.”

The Supreme Court granted certiorari and affirmed our judgment 223 La. 743; 66 So.2d 793. This case had to do with notice of judgment before the delays commenced to run against an appeal. We have- not been able to find any case holding that the delays for filing a motion for a new trial, or rehearing, from a judgment based on domiciliary service did not commence to run until notice of the judgment was s'erved.

All of the cases we have examined and the present ruling of the Courts is that no appeal lies until a-judgment is signed and that an appeal can not be taken from an unsigned judgment. A judgment is not considered final until it is signed and it is not rendered until it is signed. Foster v. Kaplan Rice Mill, 203 La. 245, 13 So.2d 850.

The. delay for applying for an appeal does not commence to run until a ruling of the Court on a motion for a new trial, or rehearing, timely filed. Article 558 of the Code of Practice provides that motions for a new trial must be filed within three days of the rendition o'f judgment and the only exceptions to this are the two exceptions found in Article 543 of the Code of Practice, namely: when the judgment is signed in a parish in a Judicial District comprising more than one parish other than the one in which the cause is tried; and, the second exception is when the litigant, or attorney, is a nonresident of the parish where the cause is tried and he makes a deposit of a small fee with the Clerk of Court to obtain written notice of the rendition of the judgment.

We quote from the case of Lemon v. Marrero, 12 Orleans App. 74, to show that the law applicable to appeals and execution of judgments has nothing to do with the delay for applying for a new trial or rehearing from a judgment based on domiciliary service:

“On May 1st, 1914, judgment was rendered and signed maintaining defendant’s exception and dismissing plaintiff’s suit. More than three judicial days thereafter, namely, May 19th, the plaintiff applied for a new trial, and it was granted. Thereupon defendant appealed and in support thereof contends that the motion applying for a new trial and the judgment granting same should be reversed, as more than three judicial days having elapsed since the signing of the judgment, it was too late for the trial Court to entertain or pass upon a motion for a new trial or in any way to revise its own judgment.
“The contention is well founded under C.P., 558, which with certainty fixes the delay within which a new trial should be sought. This delay runs from the rendition of the judgment and not from the date when the judgment has been notified. The requirement as to notice has to do solely with the execution of the judgment and the delays for appeal.
“As the trial Court was wholly powerless to entertain the application for a new trial, it is futile to enquire into or consider the grounds upon which it granted same in the present instance.”

The ruling in the cited case was the same as ours in McClelland v. District Household of Ruth, 151 So. 246, and that of our brethren of the Second Circuit in Wallace v. Martin, La.App., 166 So. 874. In the Mc-Clelland case, Judge Mouton, the author of the opinion, gave the illustration of a judgment rendered, which was absolutely null and void on the face of the record for the want of citation. Certainly if there was no citation, then there could have been no domiciliary service, or service of any kind. In the Lemon case, decided by the Court of Appeal, Parish of Orleans, a new trial was granted by the District Court from a judgment sustaining an exception of no cause of action, and the question of notice as to when the delays commenced to run on account of lack of notice of the rendition of the judgment, and the Court there correctly held that the matter of notice only applied to execution and appeals and had nothing to do with the time for applying for a new trial or a rehearing.

If Article 558 had contained a provision for notice of judgment prior to the commencement of the delay for applying for a new trial or rehearing, or if a motion for a new trial or rehearing was a necessary prerequisite prior to execution or appeal, then defendant, appellant would have sound logic on which to base his contention. But a motion for a new trial or a rehearing is not a prerequisite to an appeal or an execution of a judgment as provided in Articles 575 and 624 of the Code of Practice, or a new trial or rehearing, with the exception of the two circumstances provided for in Article 543 of the Code of Practice. Therefore, we hold that notice of judgment based on domiciliary service is not a prerequisite to commence the running of the delay to file a motion for a new trial or rehearing but that the delay commences to run immediately upon the signing of the judgment, except under the circumstances recited in Article 543 of the Code of Practice.

La.Law Rev., Vol. 9, page 509.

The Court, as we view the matter before us, has no right to apply the law applicable to notice of judgment to toll the time based on domiciliary service for the purpose of taking an appeal or executing a judgment to that for applying for a new trial or rehearing. It is our duty to interpret the law, not to make it. That is for the legislature.

For the reasons stated, our original decree rendered herein is avoided and reversed and the judgment of the District Court is affirmed.

LOTTINGER, Judge

dissents.

I am of the firm opinion that the judgment appealed from should be reversed and the case remanded and that a new trial be had.

From a careful reading of this record and of the affidavits filed therein in connection with defendant’s application for a new trial as well as the letter of attorney for plaintiff therein referred to in said affidavits as quoted in the original opinion and decree rendered by this court, I am firmly of the opinion that neither defendant nor his attorney had reason to believe that a default judgment would be taken. The attorney for plaintiff notified defendant’s counsel that he would be given reasonable time to file pleadings and apparently plaintiff’s counsel took no steps to let it be known when the time he had allowed would expire or that it had expired. I do not mean to state that counsel for defendant did not have ample time in which to prepare and file his pleadings. I do believe, however, that counsel for defendant was given to believe that he would be given time to prepare his pleadings and that he was never notified by letter or otherwise that the time allowed him had expired or that it would expire within a given period of time and that at the expiration of said time a default would be taken. It is on this premise that I think the judgment should be annulled and the case remanded.

The rule with respect to setting such default judgments aside has been stated by our Supreme Court in the case of De Frances v. Gauthier, 220 La. 145, 55 So.2d 896, 897, as follows:

“It is well settled that he who seeks to have a default judgment against him set aside must allege and prove that he had good reasons for his nonappearance and for his failure to appear and timely plead. In other words, he must allege and prove facts which would excuse his failure to plead any defense that he might have had. When the trial judge has refused the defendant a new trial in a default judgment case, the appellate court should not disturb that ruling, regardless of the fact that the defendant may urge in his motion for a new trial that he has a meritorious defense to the merits, unless the defendant has shown to the trial judge a good excuse for his failure to appear to defend the suit. This is the ruling announced in Cutrer v. Cutrer, 169 So. 807, decided by the Court of Appeal, First Circuit, with which we fully agreed.”

I think that the facts here are amply sufficient to show why defendant did not make timely appearance to defend the suit. It would certainly have been little or no trouble for plaintiff’s attorney to notify defendant’s counsel that he intended to take prompt or further action in the matter.

Our courts have not hesitated to afford relief against judgments, irrespective of any issue of inattention or neglect, when the circumstances under which the judgment is rendered show the deprivation of the legal rights of the litigant who seeks relief, and when the enforcement of the judgment would be unconscionable and inequitable. See City of New Orleans v. LeBourgeois, 50 La.Ann. 591, 23 So. 542; Bell v. Holdcraft, La.App., 196 So. 379; Alonso v. Bowers, 222 La. 1093, 64 So.2d 443. I believe what was said in the case of Burthe v. Lee, La.App., 152 So. 100, 102, is applicable here:

“Law suits are not games in which courts are the mere referees or umpires, and in which technicalities must be allowed to triumph over actual justice.”

On the basis of equity, therefore, the judgment should be annulled as its enforcement would be inequitable and unconscionable. I feel that the defendant is entitled to his day in court to urge any defense he may have to plaintiff’s suit and for that reason I am of the opinion that the case should be remanded to the lower court.

For the foregoing reasons I respectfully dissent.  