
    Ben D. JOHNSON, Sr. v. Geddes A. JONES-JOURNET et al.
    No. 6551.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1974.
    Rehearing Denied Feb. 13, 1975.
    Writ Granted March 21, 1975.
    A. M. Trudeau, Jr., New Orleans, for plaintiff-appellee.
    Jesse James Marks, Dorsey & Marks, New Orleans, for defendant-appellants.
    Before REDMANN, LEMMON and STOULIG, JJ.
   REDMANN, Judge.

Reversing the trial court, we annul as obtained by “ill practices,” C.C.P. art. 2004, a default judgment which, as appellee had prayed, cast appellant as solidarily liable on a promissory note on the face of which he was unmistakably liable only jointly.

The note holder has no semblance of grounds to consider himself entitled to collect his debt in full from one of six comakers of a note containing no promissory language other than “We promise to pay.” That the resulting obligation is not solida-ry is not open to question. Solidarity “is not presumed; it must be expressly stipulated” except where the law provides solidarity, C.C. art. 2093. The only negotiable instrument law provision of solidarity is La.R.S. 7:17(7), under which two or more persons signing an “I promise to pay” instrument are “deemed to be jointly and severally liable thereon.”

We are therefore dealing not with a merely questionable claim but with a patently insupportable claim of solidarity. Whether the patently insupportable claim was presented deliberately or inadvertently does not matter. The presentation of a patently insupportable claim to a court is an ill practice objectively, even if the party presenting it be ignorant of the patent in-supportability and therefore be subjectively in good faith.

The judgment appealed from is reversed and the default judgment of May 18, 1972 is annulled at appellee’s cost.

Reversed and rendered.

STOULIG, Judge

(dissenting).

I respectfully dissent.

Appellant, Charles Bowers, Jr., through his own negligence, inattention and/or possible design, permitted a default judgment to be confirmed against him by failing to respond to a petition personally served on him. That pleading claimed appellant was solidarily liable for a $16,000 plus indebtedness, but the promissory note upon which the claim was based reflected Bowers was jointly liable only for his pro rata of one-sixth of the obligation. However, the original plaintiff, Johnson, obtained a judgment against appellant as a solidary obligor on May 18, 1972. Had Bowers answered, obviously he could have limited his liability, but he failed to do so.

It is germane to inquire into Bowers motivation in sleeping on his rights because the majority of this court has now afforded him relief on. equitable principles. Among the conditions imposed upon the litigant seeking equitable relief are that he “come with clean hands” and “be willing to do equity.”

In oral argument, appellee’s counsel stated that he had attempted to amicably negotiate with the defendant and his attorney before filing the suit on the note. He was unsuccessful because the defendant and his attorney were content to rely on the fact that this maker was judgment proof.

These statements were not refuted by appellant’s counsel who allegedly was a party to the pre-suit negotiations and they are indirectly corroborated by the fact that the defendant was recognized as an heir of his deceased father in a subsequently instituted succession proceeding. While it is not ascertainable from the record precisely what time period elapsed between the Johnson suit (CDC No. 531-859) and the filing of the succession (CDC No. 540-133) under which Bowers inherited real estate, it must have been considerable, because some 9,000 suits were filed in the interim.

In any event, Bowers first manifested an interest in obtaining justice after a judgment debtor rule compelled him to come to court on May 25, 1973 to answer questions about his assets.

Apparently prompted by his newly acquired solvency, Bowers filed a “Motion to Annul and in the Alternative Modify Judgment” on June 6, 1973. His basis for nullity is the default judgment was rendered contrary to principles of procedural and substantive law and his alternative plea is grounded on a claim his liability is limited to one-sixth of the original demand.

The judgment of the trial court sustaining the exception of no cause of action should be sustained because Bowers failed to set forth any of the exclusive causes for nullifying a judgment. (C.C.P. arts. 2002 and 2004) The merits of the deficiencies alleged should not be considered. When Bowers was personally served with the original petition, he had an opportunity to present substantive defenses. Because he took no action, judgment was rendered against him and once the delays for .appealing expired, the judgment became final.

To reverse the trial court the majority, ex gratia, supplied the plea of ill practice and incorrectly applied that line of jurisprudence permitting relief under C.C.P. art. 2004 even though there is no actual fraud or intentional wrongdoing. The rationale therefor was succinctly stated in St. Mary v. St. Mary :

“ * * * [T]he fraud which may justify annulling a judgment under LSA-CCP Art. 2004 is not only conduct which is fraudulent in the strict sense of the term. ‘The article is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment, of some legal right, and where the enforcement of the judgment would be unconscientious and inequitable.’ Tapp v. Guaranty Finance Co., La.App. 1 Cir., 158 So.2d 228, 233, certiorari denied, 245 La. 640, 160 So.2d 228.
“Official Revision Comment b. to LSA-CCP Art. 2004 expressly states the desire to retain the judicial discretion obtaining under the former jurisprudence ‘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 un-conscientious and inequitable.’ See, e. g., Succession of Gilmore, 157 La. 130, 102 So. 94 (1924), Tapp v. Guaranty Finance Co. (1962), cited above, and Sturgis v. Gulfco Finance Co. [147 So.2d 782] (1962), cited above, for discussion of jurisprudence upon which this principle is based.”

The redactors under official Comment b of C.C.P. art. 2004 also affirmed' the line of jurisprudence stating courts do not sanction negligence and laches. Thus before a nullity action should be "sustained for ill practice, even where there is inattention and negligence, two elements should concur: (1) some circumstance (either contrived or accidental) deprived the party cast in judgment of an opportunity to present a defense; and (2) enforcement of the judgment would be unconscionable and inequitable. The fact the judgment is unconscionable is not in itself sufficient to constitute an ill practice. The majority reasoning carried to its ultimate conclusion would prohibit enforcement of any final judgment as being unconscionable against any litigant who had a valid defense which was not asserted because of his own inaction or because of incompetent counsel. Enforcement of any judgment rendered under such circumstances is to some extent unconscionable.

In Howard Construction Company v. Huval, 243 So.2d 925 (La.App.3d Cir. 1970), the court refused to nullify a judgment obtained against a garnishee who failed to answer interrogatories and was subsequently cast in judgment when he did appear for a rule to show cause why he should not be cast. In the nullity action, the garnishee pointed out a deficiency in the pleading patent on its face — the amount of the debt was not disclosed in the interrogatories as required by law. The court pointed out the omission was an error, not a nullity. Once the time for appeal expired, the judgment became final.

Louisiana courts have refused to annul final judgments even though based on obvious errors of law or obtained by default against a defendant who could have urged, but failed to plead, an .affirmative defense. However, judgment grounded on an absolute nullity ab initio has been set aside under C.C.P. art. 2004.

I agree with the result obtained in the cases cited in the majority footnoted material. I note the factual situations in all reflect that some misrepresentation was made to obtain the judgment nullified or certain circumstances concurred accidently to prevent the party cast from asserting legal defenses prior to judgment. Since these are distinguishable from the case before us, they are inapposite.

Even were I to agree there was an ill practice, appellant should not be allowed to invoke equity because of his pre-solvency conduct.

Finally, the majority has deprived appel-lee of more than $3,000 that is patently obviously due by nullifying the entire judgment. 
      
      . The note-holder argues that a defendant’s failure to answer at the time of the petition prevents a later action for nullity on grounds which could then have been raised. The law is to the contrary; Succession of Gilmore, 1924, 157 La. 130, 102 So. 94; Muller v. Michel Lecler, Inc., La.App.1972, 266 So.2d 916. Courts “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 uneonscientious and inequitable,” City of New Orleans v. Le-Bourgeois, 1898, 50 La.Ann. 591, 23 So. 542, “even though no actual fraud or intentional wrong is shown in the procurement of the judgment,” Leidig v. Leidig, La.App.1966, 187 So.2d 201, 204.
      Conflicts may arise between some principle of law, such as that seeking finality of judgments or that requiring affirmative defenses to be pleaded, and C.C.P. art. 2004’s principle of law that “A final judgment obtained by fraud or ill practices may be annulled.” Our noteholder might prefer to resolve such a conflict by assigning a greater importance to promptness than to probity. But C.C.P. art. 2004 does not deny its relief to the non-answerer or the non-appealer: if there must be a hierarchy of legal principles, art. 2004’s unqualified rule plainly outranks. The reason is evident: government does not provide courts to abet fraud or ill practice; uprightness in courts of justice is more important than swiftness or technical correctness in pleading or procedure.
      The sole condition of art. 2004’s rule is that the nullity action be brought within a year. The only exception to the basic rule of art. 2004 is that of art. 2005: an appellate court judgment “may be annulled only when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court.” (Emphasis added.) Art. 2005 allows an appellate judgment to be annulled, even when the ground is in the appellate record, if the ground was not considered by the appellate court. (See Tracy v. Dufrene, 1960, 240 La. 232, 121 So.2d 843). Thus art. 2005 itself contradicts any theory that unerring vigilance is a prerequisite to O.O.P. art. 2004’s simple rule allowing annulment of judgments resulting from fraud or ill practices.
      Art. 2004 is clear; “A final judgment obtained by fraud or ill practices may be annulled.” The default judgment here in question was obtained by what is objectively ill practice. Nothing else matters.
     
      
      .The Gilmore court, admittedly acting as a court of equity, noted:
      “It is true that said petition does not charge ‘fraud’ or the ill practices specifically enumerated in the article of the Code of Practice above cited. The remedy given by said article to annul judgments, however, is not restrictive. The courts of this state will not hesitate 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 legal rights of the litigant who seeks relief, and when the enforcement of the judgment would be unconscientious and inequitable. Our courts will follow the general principles of equity jurisprudence applied by the equity courts of the other states of this country in actions of this character. Lazarus v. McGuirk, 42 La.Ann. 194, 8 So. 253; City of New Orleans v. Le Bourgeois, 50 La. Ann. 591, 23 So. 542.” 102 So. at 95.
     
      
      . Crescent River Port Pilots’ Association v. Heuer, 193 So.2d 276 (La.App. 4th Cir. 1966).
     
      
      . Bridges v. Trevino, 64 So.2d 528 (La.App. 1st Cir. 1953) ; City of New Orleans v. Levy, 233 La. 844, 98 So.2d 210 (1957).
     
      
      . 175 So.2d 898, 896 (La.App.3d Cir. 1965).
     
      
      . Succession of Quaglino, 248 So.2d 380 (La. App.4th Cir. 1971).
     
      
      . Investment Contracts, Inc. v. Jones, 230 So. 2d 262 (La.App.1st Cir. 1969).
     
      
      . Tapp v. Guaranty Finance Company, 158 So.2d 228 (La.App.1st Cir. 1963).
     
      
      . Succession of Gilmore, supra (attorney concealed will) ; Muller v. Michel Lecler, Inc., supra (plaintiff obtained judgment for unpaid wages on perjured testimony.) Leidig v. Leidig, supra (husband knew wife’s address when suit was filed but alleged he did not and had curator appointed).
     
      
      . City of New Orleans v. Le Bourgeois, supra.
     