
    Harold M. WHEELAHAN, III v. Marguerite Vicknair WHEELAHAN.
    No. 2000-CA-1330.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 10, 2001.
    Opinion on Denial of Rehearing Feb. 6, 2002.
    
      Marcus L. Giusti, Hannan, Drake & Gi-usti, Metairie, LA, Counsel for Appellant.
    Harold M. Wheelahan, III, New Orleans, LA, Counsel for Plaintiff-Appellee.
    Paula Perrone, Chehardy, Sherman, Ellis, Breslin & Murray, Metairie, LA, Counsel for Defendant/Appellant.
    Court composed of Judge JOAN BERNARD ARMSTRONG, Judge STEVEN R. PLOTKIN and Judge DAVID S. GORBATY.
   ARMSTRONG, Judge.

This case involves the attempts of a judgment creditor to collect against the sureties who furnished a suspensive appeal bond. The issues on appeal are (1) whether the judgment creditor’s action against the sureties is premature and (2) whether interest could be added to the judgment. We hold that the judgment creditor’s action against the sureties is not premature and that neither the trial court nor this court has authority to add interest to the judgment. Therefore, we will reverse the dismissal of the creditor’s action against the sureties which dismissal was based upon prematurity, reverse the award of interest and remand for further proceedings.

The judgment in this case was for partition of community property and included an equalization payment to be made by Harold M. Wheelahan, III (“Mr. Wheelahan”) to Marguerite Vieknair Wheelahan (“Ms. Vieknair”). The equalization payment was couched in terms of two different alternatives, and the parties disagree as to which alternative is applicable, but that dispute is not germane to our decision in the present appeal. The judgment made no provision for interest on the equalization payment. Mr. Wheelahan appealed the judgment to this court, which affirmed in an unpublished opinion, and petitioned the Supreme Court, which denied writs. Ms. | ¡Vieknair did not file any postjudgment motions nor did she appeal or cross-appeal, thus, the partition judgment became final.

Mr. Wheelahan’s appeal of the partition judgment was a suspensive appeal. A sus-pensive appeal bond was furnished by Harry C. Graham, III and Julie Graham (“The Grahams”). By way of a motion, Ms. Vicknair has sought to make the partition judgment, specifically its provision for an equalization payment, executory against the Grahams. The Grahams responded with exceptions and arguments including an exception of prematurity. Ms. Vicknair also sought to have interest added to the judgment. The Grahams and Mr. Wheela-han argued that, as the judgment had long ago become final, it could not be amended to add interest. The trial court maintained the Graham’s exception of prematurity, and dismissed Ms. Vicknair’s motion to make the judgment executory against the Grahams, but added legal interest from the date of judgment to the judgment. Because Ms. Vicknair’s motion to make her judgment executory against the Grahams was dismissed upon an exception of prematurity, the trial court did not address the Grahams’ other exception or other arguments. As there has not yet been any trial court decision on the Grahams’ other exception or other arguments, we will not address the Grahams’ other exception or other arguments, but leave them to be considered on remand. Ms. Vicknair appeals the finding of prematurity. The Grahams and Mr. Wheelahan appeal the addition of interest to the judgment.

A suspensive appeal bond provides that the surety furnishing the bond will guarantee the payment of the judgment if, and to the extent that the judgment is affirmed on appeal. See La.Code Civ. Proc. art. 2124, La. R.S. 13:4451. Thus, it is a form of surety contract. La.Civ.Code art. 3035 et seq. The Grahams’ exception of prematurity is based upon the argument that Ms. Vicknair has not done everything ^possible to collect her judgment against Mr. Wheelahan before attempting to collect from the Grahams. The right of a surety to insist that the creditor first attempt collection from the principal debtor, before proceeding against the surety, is referred to in the civil law as the right of “discussion”. See Expose des Motifs to 1987 revision of Civil Code’s suretyship articles preceding Article 3035. However, the right of discussion was abolished in the 1987 revisions to the suretyship articles of the Civil Code Civ.Code art. 3045; see also Exposé des Motifs, supra. Ms. Vicknair is not obligated to. exhaust all possibilities for collection against Mr. Wheelahan before proceeding against the Grahams. To the extent that a return on execution, insufficient to satisfy the judgment, is a prerequisite to proceeding against a suspensive appeal bond surety, see La. R.S 13:4451, that prerequisite was satisfied by the Sheriffs return in this case over two years ago on June 8, 1999. Ms. Vicknair’s attempt to collect her judgment against the Grahams is not premature.

The partition judgment in this case, which long ago became final, does not provide for the accrual of interest. At least as to non-tort judgments, interest is never due on a judgment unless the judgment so provides. E.g., Williams v. Williams, 431 So.2d 780 (La.App. 4th Cir.1983); Garvin v. City of New Orleans, 270 S.2d 919 (La.App. 4 Cir.1972). Also, once a judgment has become final, neither the trial court nor the appellate court has the power to add interest to it. Id. Thus, in the present case, we must reverse the award of interest on the equalization payment of the partition judgment.

For the foregoing reasons, we reverse the maintaining of the exception of prematurity, and the dismissal of Ms. Vicknair’s motion to make her judgment executory against the Grahams and we reverse the judgment allowing the addition of interest to the equalization payment of the partition judgment and we remand for ^further proceedings.

REVERSED AND REMANDED.

ON APPLICATION FOR REHEARING

ARMSTRONG, Judge.

In her application for rehearing, Ms. Vicknair argues that this Court’s decision in Williams v. Williams, 431 So.2d 780 (La.App. 4th Cir.1983), addressed only prejudgment interest and not post-judgment interest. However, in Williams, the judgment sought to be enforced had been rendered on June 9, 1980 and the Williams decision disallowed inclusion in the garnishment of legal interest from 1978 to 1981. Thus, Williams addressed both prejudgment and postjudgment interest when it held:

It is settled that interest is not due on judgments which are silent as to interest, except where specifically provided by statute [for tort cases].... Plaintiff was entitled to interest on past due alimony payments. However, the executo-ry judgment which failed to provide for legal interest is now final. Therefore, the garnishment decree should not have included legal interest.

431 So.2d at 782. Because Williams, in holding that interest is not due when the judgment is silent as to interest, included postjudgment interest, its holding is applicable to the present case and we have no authority to disregard such binding precedent. It bears repeating Williams’ express holding that, even where the plaintiff was legally entitled to interest, if the judgment is silent as to interest, then no interest is due. See also Garvin v. City of New Orleans, 270 So.2d 919 (La.App. 4th Cir, 1972) (“The rule that silence is considered rejection has been applied with regard to interest in holdings that money judgments do not bear interest unless specified therein even though interest may have been legally due.” (emphasis added)).

Sugar Field Oil Co. v. Carter, 214 La. 586, 38 So.2d 249 (La.1948), does not hold that a judgment which has become final may be amended to add interest. In Sugar Field, the trial court had included interest in the judgment and, upon timely appeal, that judgment was affirmed.

Reinhardt v. Reinhardt 99-0721 (La.10/19/99), 748 So.2d 423, does not hold that a judgment which has become final may be amended to add interest. In Reinhardt the trial court had awarded both prejudgment and postjudgment interest on a partition judgment. Upon timely appeal, the award of prejudgment interest was reversed and it was held that only post-judgment interest could be included in a partition judgment.

Cajun Electric Power Cooperative v. Owens-Corning Corp., 616 So.2d 645 (La.1993), addressed only the issues of whether interest could be awarded on expert witness fees and, if so, whether such interest runs prejudgment or only post-judgment. The procedural history of Cajun Electric was complicated, as there were multiple parties and multiple appeals, but nowhere does the decision state that a judgment which has become final can be amended to add interest. Indeed, it does not appear that any party to Cajun Electric ever raised such an issue.

|3In sum, binding precedent of this Court forbids us to amend a judgment, once the judgment has become final, to add either prejudgment interest or post-judgment interest. Accordingly, the application for rehearing is denied.

APPLICATION FOR REHEARING DENIED. 
      
      . In the present context, we use the word "final” to refer to a judgment as to which time for appeal has expired or to which all appeals have been exhausted. A party may, of course, timely appeal a trial court’s failure to include interest in a judgment.
     