
    SUCCESSION OF William E. GRIFFITH.
    Nos. 12280, 12332.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1981.
    On Rehearing Feb. 10, 1982.
    M. Arnaud Pilie, New Orleans, for executrix and appellant.
    Edward C. Alker, Metairie, in pro per.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   GULOTTA, Judge.

In this Writ Application, the Succession of William E. Griffith seeks to annul a judgment ordering the Succession to pay an attorney for legal services rendered to the decedent during decedent’s lifetime. The judgment was signed after trial on a rule to show cause why the Succession should not pay his claim immediately. The Succession contends that a summary proceeding is not the proper procedure for a creditor to pursue a money judgment against a succession and that the required citation and service were not made.

A motion for suspensive appeal was filed by the Succession, but the judgment creditor sought to execute on the judgment by a writ of fieri facias and garnishment seizing the Succession’s checking account. In supplemental writ applications, the Succession seeks to have the seizure and garnishment dissolved on the grounds that the judgment itself is a nullity and that the trial court lacked jurisdiction in the matter while the appeal was pending. A stay of execution of the judgment has been issued, and the Supreme Court has transferred the matter to us for expedited disposition of the issues raised.

Dr. Griffith’s will was probated on November 20,1979. On June 16,1980 Edward C. Alker, an attorney having an unliquidat-ed claim against Dr. Griffith for professional fees, filed a petition to compel the executrix to furnish security in the amount of $30,208.88, one-and-one-quarter times the total amount of his claim. On June 23, Alker filed formal proof of his claim and annexed a statement of account itemizing the legal services he had rendered the decedent; and on July 9 he filed a rule to show cause why the administratrix should not be removed and his claim paid immediately. Karen Griffith, as testamentary executrix of the Succession, filed a $30,000.00 bond on July 24.

At the show cause hearing on September 3,1980 only Alker was present. Alker testified that he had performed services according to a descriptive list, which he offered into evidence. On September 11 the trial court rendered judgment as prayed in the amount of $25,167.10. Following the filing of the suspensive appeal and the attempted execution of the judgment, these writ applications were filed.

Although there is a serious question whether summary procedure may be used to assert a money claim against a succession, the dilatory exception to use of this procedure is waived unless timely pleaded in the trial court. LSA-C.C.P. Arts. 926, 928. See also, Ritchey v. Brignac, 328 So.2d 190 (La.App. 3rd Cir. 1976); In re Lomm, 195 So.2d 416 (La.App. 4th Cir. 1967), writ refused, 250 La. 541, 197 So.2d 81 (1967). In this matter the exception was untimely filed and we cannot now consider the propriety of Alker’s use of summary procedure to assert his claim.

On the other hand, a judgment rendered against a defendant who has not been served with process and has not entered a general appearance is an absolute nullity that can be raised collaterally at any time. LSA-C.C.P. Art. 2002(2); Thompson v. Courville, 372 So.2d 579 (La.App. 3rd Cir. 1979). The real issue before us, therefore, is whether the Succession was properly served with Alker’s rule to show cause.

Although LSA-C.C.P. Art. 2594 states that citation and service are not necessary in a summary proceeding, it does provide that a copy of the rule to show cause or other pleadings filed by the plaintiff and any order of the court assigning the date and hour of the trial, “shall be served upon the defendant.” The article does not specify a particular method of service. LSA-C. C.P. Art. 2596 states, however, that the rules governing ordinary proceedings are applicable to summary proceedings, unless otherwise provided.

LSA-C.C.P. Art. 1313, dealing with service of process, provides for service by mail or by delivery of a pleading that “requires no appearance or answer, the service being complete upon the mailing of a copy thereof.” On the other hand, LSA-C.C.P. Art. 1314 provides for service by the sheriff of any pleading that cannot be mailed under LSA-C.C.P. Art. 1313. Since a rule to show cause anticipates an appearance by the defendant in rule, we hold that Alker’s rule required service by the sheriff. Service of the rule by mailing a copy of it to counsel was not authorized. See Normand Company v. Abraham, 176 So.2d 178 (La.App. 4th Cir. 1965).

Sheriff’s returns in the record indicate that Alker’s petition to compel the executrix to furnish security was served on the then attorney for the Succession. Likewise, Alker’s formal proof of claim was served by the sheriff on both the Succession’s attorney and the executrix.

Alker’s rule to show cause, filed on July 9, and the order setting the matter for hearing on September 3, were not served on either the Succession’s attorney or the executrix. Although service was requested at two alternative addresses, the sheriff’s returns dated July 25 and July 30, 1980 state, “returned to sheriff’s office not served.” The rule was heard on September 3 resulting in the rendition of the September 11 judgment in favor of Alker. Irrespective of the claim that the Succession attorney was informed by a certified return receipt letter of the September 3 trial date, service by mail will not suffice in this instance. We point out that the Succession neither filed a responsive pleading to the rule nor made an appearance at the hearing of the rule. Under these circumstances, because of lack of proper service, we conclude the judgment rendered in favor of Alker is a nullity. It obviously follows that any attempt to execute on the null judgment is unlawful.

Accordingly, IT IS ORDERED THAT:

1) The September 11, 1980 judgment of the trial court in favor of Edward C. Alker, ordering the Succession of Dr. William E. Griffith to pay to Edward C. Alker the sum of $25,167.10, together with legal interest and reasonable attorney’s fees of $500.00, and all costs, be reversed and set aside;

2) It is further ordered that the garnishment, seizure or other attempted execution of said judgment be and the same is dissolved;

3)The matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

BOUTALL, J., concurs and assigns reasons.

BOUTALL, Judge,

concurring:

Having been required to consider this matter on writ application rather than on the merits of the appeal, I concur in result only.

ON REHEARING

BOUTALL, Judge.

This matter came before us on writs of certiorari, prohibition and mandamus on the application of the Succession of William E. Griffith seeking to annul a judgment ordering the succession to pay the fees of an attorney, Edward C. Alker, for legal services rendered to the decedent during his lifetime and in connection with the circumstances surrounding his death. A subsequent application was filed seeking to prevent the execution of the judgment by writ of fieri facias and garnishment proceedings. In our original opinion we concluded that the judgment rendered in favor of Alker for his attorney’s fees was a nullity for lack of proper notice given the succession’s attorney and the succession’s executrix of the September 3, 1980, hearing which resulted in the rendition of the judgment complained of. The respondent Alker has applied for a rehearing on the basis that the facts upon which we rendered that judgment were incorrect, contending that a proper showing of the facts would show sufficient notice.

We granted rehearing, and have been referred to additional facts of which we were not aware on the original hearing. It should be noted that this matter came to us on writ application mandated by the Supreme Court, and not in the regular course of appeal. Accordingly, we have been plagued with the problem of obtaining a complete record from the trial court. The record has now been lodged in this court by virtue of the suspensive appeal taken by the applicant from the adverse judgment, and although it is still not complete, there is sufficient ground upon which to vacate our original opinion declaring the judgment of September 11,1980, a nullity, and to affirm that judgment.

First, we reiterate our holding that the dilatory exception of improper use of summary procedure was untimely filed, and we cannot now consider the propriety of Alker’s use of summary procedure to assert his claim.

Our inquiry here is basically directed at the nullity of judgment for lack of service. The record shows, despite continued denials of the succession attorney, that the “FORMAL PROOF OF CLAIM TO THE SUCCESSION” and “STATEMENT OF ACCOUNT”, showing the details of the claim for attorney’s fees and containing an order of the judge setting the hearing on the claim for June 30,1980, were all personally served on June 27, 1980, on Karen Griffith, the executrix. John T. Keyes, Jr., attorney for the succession at that time was served on June 26 with citation and “PETITION BY CREDITOR TO COMPEL EXECUTRIX TO FURNISH SECURITY” in addition to the other three pleadings. The applicant’s statements in this regard are misdirected. However, the rule was not heard on June 30 but later on September 3, and this is an area of serious contention.

The record as it is now composed does not contain any return of service of notice either to the executrix or the succession attorney of the September 3 hearing. It does contain a letter addressed by Alker to the new attorney for the succession, M. Arnaud Pilie, calling his attention to the September 3 trial date. There is no contention by Pilie that he did not receive the letter nor is there contention that he was unaware of the trial date. His position is simply that this informal notice is insufficient. In our original opinion, we agreed and declared the judgment null. However, on this reheáring we have been furnished further evidence which causes us to conclude that the fact of notice was indeed proven.

As stated above both the executrix and succession attorney had been served with a copy of an order setting a hearing for June 30, 1980. There were also other proceedings in the succession, not relevant to this, that were set for the same date. The clerk’s minute entry on June 30 shows only that the other matter was taken up, and there is no mention of this matter in that minute entry, nor is there any other minute entry for June 30 in the record. Alker contends that the matter was continued to September 3 by the judge in open court and that both the succession attorney and himself were thus notified. In support of his contention, he furnishes us with an affidavit of certain Max Scott to that effect. Counsel also furnishes us with a transcript of the proceedings taken on a motion to set aside the judgment of September 11 before the same judge on January 5,1981. In that proceedings the respondent makes reference to the notification in court, and although the trial judge made no remarks in that regard, nevertheless he dismissed the motion, causing us to believe that such a notification of continuance in open court did take place. We have seriously considered remanding this matter for trial on that point but this matter has been before this court for some period of time, and the judge’s action leads us to believe that proof is readily available, and that the notification is a fact.

We hold that it is within the inherent judicial power of the judge in ordering a continuance to at the same time notify the attorneys of the date to which the continuance is made, and that is sufficient notice to require the attendance at that continued hearing on the date specified. Accordingly, we agree with the action of the trial judge in permitting the attorney to proceed on September 3,1980, and we affirm the judgment rendered on September 11.

The other issue brought before us is the matter of the issuance of a fieri facias and garnishment proceedings based upon the judgment of September 11. It is apparent that a timely suspensive appeal was taken by the attorney for the succession, and indeed that matter is lodged in this court. C.C.P.Art. 2252 provides that a judgment creditor may proceed with the execution of a judgment only after the delay for a suspensive appeal therefrom has elapsed. Additionally, a suspensive appeal is one that suspends the effect or the execution of an appealable order or judgment. C.C.P.Art. 2123. Obviously, the issuance of a writ of fieri facias and garnishment proceedings in execution of the judgment sus-pensively appealed from are not permitted, and we issue a writ of mandamus directed to the trial judge ordering him to revoke and vacate the writ of fieri facias and dismiss the garnishment proceedings taken in accordance therewith.

For the reasons assigned, the September 11, 1980, judgment in favor of Edward C. Alker against the Succession of Dr. William E. Griffith in the sum of $25,167.10 is affirmed; the fieri facias and garnishment proceedings are ordered recalled and vacated and this matter is remanded to the trial court in accordance therewith.

JUDGMENT AFFIRMED; MANDAMUS ISSUED.

GULOTTA, J.,

dissenting.

GULOTTA, J., dissents.

For the reasons assigned in the original opinion, I respectfully dissent. 
      
      . LSA-C.C.P.Art. 2594 provides as follows: “Art. 2594. Service of process
      Citation and service thereof are not necessary in a summary proceeding. A copy of the contradictory motion, rule to show cause, or other pleading filed by the plaintiff in the proceeding, and of any order of court assigning the date and hour of the trial thereof, shall be served upon the defendant.”
     
      
      . LSA-C.C.P.Art. 2596 provides as follows:
      “Art. 2596. Rules of ordinary proceedings applicable; exceptions
      The rules governing ordinary proceedings are applicable to summary proceedings, except as otherwise provided by law.”
     
      
      .LSA-C.C.P.Art. 2971 provides that, except as otherwise provided by law, the rules of pleading and service of process applicable in ordinary proceedings shall apply to Succession proceedings.
     
      
      . The record contains a letter dated August 21 (though not a certified return receipt) from Alker to the Succession’s attorney in which Alker refers to the September 3 hearing.
      The copy of the rule in the record is stamped and apparently signed by a person associated with Alker who certified that a copy of the pleading was served by mail on all counsel of record.
     