KIRKEBY-NATUS CORPORATION v. CAMPBELL

No. 2124.

192 So.2d 167 (1966)

KIRKEBY-NATUS CORPORATION v. William T. CAMPBELL.

Court of Appeal of Louisiana, Fourth Circuit.

On Rehearing November 7, 1966.

Writ Granted December 12, 1966.


Attorney(s) appearing for the Case

Monroe & Lemann, Thomas B. Lemann, Bat P. Sullivan, Jr., Stephen B. Lemann, New Orleans, for plaintiff-appellee.

Steeg & Shushan, Louis G. Shushan, New Orleans, for defendant-appellant.

Before McBRIDE, YARRUT and BARNETTE, JJ.


McBRIDE, Judge.

The defendant extrajudicially confessed judgment in plaintiff's favor for $455,620 by authentic act dated February 12, 1965. Said confession stipulated that defendant

"* * * does hereby waive prescription, notice, service of petition and citation, and does consent and agree that judgment may be entered against him immediately for the full amount of principal, interest and attorneys' fees as aforesaid, and all costs, by the Civil District Court for the Parish of Orleans, State of Louisiana, or, at the option of Kirkeby-Natus Corporation, by the Courts of any other Parish or Parishes in the State of Louisiana and/or by the Federal Courts, in term or in vacation, in open Court or in Chambers, and he does further waive any and all legal delays of any nature or kind."

On March 25, 1965, by way of petition, plaintiff presented said extrajudicial confession of judgment to the Civil District Court for the Parish of Orleans and prayed for an immediate judgment against defendant which, on the same day, the court granted. A formal judgment was rendered and signed against defendant for the amount of the confessed indebtedness.

Defendant moved for a new trial on March 30, 1965; judgment was rendered July 6, 1965, dismissing the motion for a new trial. The appeal before us was taken "from the final judgment rendered in the above case on the 6th day of July, 1965."

Insofar as the record in this case is concerned, it does not appear that an appeal from the final judgment in favor of plaintiff and against the appellant rendered March 25, 1965, has been taken. If aggrieved by the judgment, appellant's remedy was to appeal therefrom and not from the judgment of July 6, 1965, disposing of his motion for a new trial.

We have before us the identical situation which was involved in General Motors Acceptance Corporation v. Deep South Pest Control, Inc., infra. The designations of the judgment appealed from in the motions of appeal in both cases are alike.

An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury. C.C.P. art. 2083.

The judgment refusing a new trial is not final and the defendant could have suffered no irreparable injury therefrom since he had an absolute right to appeal from the judgment predicated on his confession of judgment. C.C.P. art. 2085 provides:

"An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment."

Thus, the provisions of C.C.P. art. 2085 do not deprive one who has extrajudicially confessed judgment from appealing, hence such right is reserved to him. We notice the official comments beneath C.C.P. art. 2085 contain the following language:

"* * * Thus, an extrajudicial confession would not preclude an appeal under this Code. Such a pretrial confession should, of course, have probative value, but even though permitted by Const. Art. VII, § 44 after the maturity of an obligation, it should not bar an appeal. * * *"

In General Motors Acceptance Corporation v. Deep South Pest Control, Inc., La. App., 166 So.2d 46, we dismissed an appeal from a judgment denying a new trial. Writs were granted by the Supreme Court which ultimately affirmed this court (see 247 La. 625, 173 So.2d 190), saying:

"It is well settled that a judgment refusing a new trial is not appealable. It is not a final judgment and can produce no irreparable injury. State ex rel. Land v. Martin, 207 La. 410, 21 So.2d 481. * * * * * * "We conclude, as did the Court of Appeal, that a fundamental defect mars the appeal. No right of appeal existed as to the appealed judgment. The defect is fatal."

It is our bounden duty to notice exofficio appellant's lack of right to take an appeal from the harmless interlocutory judgment. An appeal can be dismissed at any time because there is no right to appeal. C.C.P. art. 2162.

For the reasons above assigned the appeal herein is dismissed.

Dismissed.

On Rehearing

Before McBRIDE, YARRUT, SAMUEL, CHASEZ, HALL and JANVIER, JJ.

CHASEZ, Judge.

We granted a rehearing in this matter on the application of defendant, William T. Campbell.

The record in this matter discloses that:

On March 25, 1965 a judgment was rendered by the District Court in favor of Kirkeby-Natus Corporation and against the defendant, William T. Campbell,—[the basis of the judgment being a confession of judgment executed by defendant in authentic form]—reading as follows:

"Considering the foregoing petition and the defendant's confession of judgment by public act, filed herein, and the law and the evidence being in favor of the plaintiff, for the reasons this day orally assigned; "IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein, in favor of the plaintiff, Kirkeby-Natus Corporation, and against the defendant, William T. Campbell, in the full sum of Four Hundred Fourteen Thousand, Two Hundred and no/100 ($414,200.00) dollars, together with interest at the rate of 8% per annum from November 7, 1964, until paid, and together with 10% attorneys' fees thereon, and for all court costs of these proceedings, and that this judgment be rendered, signed and become executory forthwith. "JUDGMENT READ, RENDERED AND SIGNED in open Court at New Orleans, Louisiana this 25th day of March, 1965."

On March 30, 1965 the defendant, William C. Campbell, applied to the District Court for a new trial. This motion was tried on June 11, 1965 and submitted to the Court for adjudication. On the 6th day of July, 1965 the court rendered its judgment denying a new trial as follows:

"The motion filed herein on March 30, 1965 by William T. Campbell for a new trial, having been heretofore tried, argued and submitted to the court, and for the reasons orally assigned; "IT IS ORDERED that the said motion for a new trial be dismissed and new trial denied. "JUDGMENT READ, RENDERED AND SIGNED IN OPEN COURT on July 6, 1965."

The defendant herein failed to appeal suspensively or devolutively from the judgment rendered by the Court against him on the 25th day of March, 1965.

The defendant however did on October 1, 1965 file a petition for a devolutive appeal from the judgment rendered by the court on July 6, 1965. That petition reads as follows:

"PETITION FOR APPEAL

"The petition of William T. Campbell, defendant in the above entitled and numbered cause, respectfully represents:

I.

"Petitioner desires to appeal devolutively from the final judgment rendered in the above cause on the 6th day of July, 1965. "WHEREFORE, petitioner prays that he be granted a devolutive appeal in the above entitled and numbered cause returnable unto the Court of Appeal, Fourth Circuit, State of Louisiana, within the delays fixed by law upon his giving bond with good and solvent surety conditioned as the law directs".

The District Court signed an order granting the appeal, upon defendant furnishing bond in the amount of $100.00.

It is urged on behalf of the defendant, William T. Campbell, that he intended to appeal from the judgment rendered by the Court on March 25, 1965, and that this intention is indicated by the appeal bond furnished in this matter. However, as hereinabove set forth, the petition for appeal filed by defendant clearly states that the appeal is from the judgment dated July 6, 1965 and the bond can only be accepted as having been furnished for the appeal indicated in the petition. Thus it appears clear to the Court that the defendant intended to appeal from the judgment dated July 6, 1965, denying his application for a new trial, and did not appeal from the judgment that was rendered by the District Court on March 25, 1965.

This position, in our opinion is further supported by a memorandum filed with the Court by the defendant at the original hearing wherein the following appears:

"We respectfully submit to Your Honors that the Trial Court abused its discretion in not granting to your defendant a new trial in this matter. This error should be remedied on this appeal. "The judgment of the Trial Court should be reversed and remanded for further proceedings to hear and consider the defenses and evidence of the defendant."

In dealing with the identical situation, in the case of General Motors Accept. Corp. v. Deep South Pest Con., 247 La. 625, 173 So.2d 190, the Supreme Court of Louisiana, on page 191, stated, among other things, the following:

"(2) It is well settled that a judgment refusing a new trial is not appealable. It is not a final judgment and can produce no irreparable injury. State ex rel. Land v. Martin, 207 La. 410, 21 So.2d 481. "Even if we were disposed to construe the appeal motion as taking an appeal from the appealable judgment on the merits rendered against the appellants on March 19, 1963, (1. The appellants could have appealed suspensively from this judgment within 15 days after the refusal of a new trial as provided by LSA-C.C.P. Article 2123.) we are prevented from doing so by two barriers: Firstly, the motion for appeal by its terms limits its effect to the judgment of December 10, 1963. * * * * * * * * * "(3) We conclude, as did the Court of Appeal, that a fundamental defect mars the appeal. No right of appeal existed as to the appealed judgment. The defect is fatal."

In this case, the appeal motion by its terms limits its effect to the judgment of July 6, 1965.

A careful consideration and a thorough analysis of this matter convinces us that our former opinion and decree are correct and that they should be reinstated.

For the reasons assigned, our original opinion and decree herein are reinstated as the final judgment of this Court.

Original decree reinstated. YARRUT, Judge (dissenting).

I must dissent because I believe Defendant-Appellant's appeal should not have been dismissed.

The appeal was dismissed on the ground the appeal was taken from a judgment of the District Court denying Appellant's motion for a new trial. A brief statement of the pleadings convinces me that the appeal was not taken from the refusal to grant a new trial, but from the judgment which was previously rendered and signed on March 25, 1965, which only became final on July 6, 1965, when the motion for a new trial was denied. Until that date, the judgment rendered and signed on March 25, 1965, was not executory or appealable until the new trial was denied on July 6, 1965.

There is no question that an appeal did not lie from the denial of a new trial; and it is clear that counsel for Appellant, in his motion for the appeal, which was timely taken, inadvertently stated the date of the final judgment as July 6, 1965, when it should have been March 25, 1965. Appellant's motion for the appeal does not recite the appeal is from the refusal of the District Court to grant an appeal from the denial of his motion for a new trial, nor does he contend he was entitled to appeal from the refusal to grant a new trial, but recites it is for an appeal "from the final judgment rendered in the above cause on the 6th day of July, 1965," even though counsel for Appellant strenuously contends the district judge committed error in denying a new trial. The judgment appealed from was rendered and signed on March 25, 1965, for $414,200.00, plus 8% interest and 10% attorney's fees, without any notice to Appellant.

The devolutive appeal bond recites that Appellant was appealing from the judgment awarding Appellee $414,200.00 with interest, attorney's fees and costs, not from the judgment denying a new trial.

General Motors Acceptance Corporation v. Deep South Pest Control, Inc., 247 La. 625, 173 So.2d 190, relied upon by this Court, is distinguishable from the instant case. In the cited case the Supreme Court noted "the appellants tacitly recognize that the appeal was from the judgment overruling the motion for a new trial by resting their case in this Court on the ground that such a judgment is appealable." In the instant case even though Appellant contended that a new trial should have been granted, he did not argue, as the appellants did in the cited case, that a judgment denying a new trial is a final judgment which is appealable.

It is clear the only final judgment rendered and signed was the original judgment rendered and signed on March 25, 1965, which only became executory and appealable when the motion for a new trial was denied on July 6, 1965. The improper date given in the motion of appeal, which is apparent from the record, should not result in the dismissal of an appeal from a default judgment for $414,200.00 plus interest and attorney's fees, rendered and signed on the date of filing, without any citation or notice to Defendant.

We feel that the error was merely an inadvertent use of the wrong date, and is governed by LSA-C.C.P. art. 2161 which provides:

"An appeal shall not be dismissed because of any irregularity, error, or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later."

In this case Appellee made no motion to dismiss the appeal, this Court doing so ex proprio motu.

Appeals are favored, and should not be dismissed because of technical errors. Emmons v. Agricultural Ins. Co., 245 La. 411, 158 So.2d 594; Spiller v. Spiller, 170 La. 813, 129 So. 212; Alpaugh v. Krajcer, La. App., 54 So.2d 233.

Furthermore, in the final analysis, the pleading labeled "motion for new trial" asked that the judgment rendered on March 26, 1965 be set aside and annulled and a new trial granted, which was, in effect, a proceeding to annul the judgment under LSA-C.C.P. art. 2002 for want of citation, improperly called a motion for new trial.

The refusal to annul the final judgment was, therefore, appealable.

For the above reasons, the appeal should not have been dismissed; but should be heard on the merits.

SAMUEL, Judge (dissenting).

I agree that the judgment rendered and signed on March 25, 1965 and based on the confession is the only judgment from which an appeal could be taken. And it is true that the defendant's petition for appeal alleges he desires to appeal from the judgment rendered on July 6, 1965, which judgment denied his motion for a new trial and is not appealable. However, I am of the opinion that the appeal should not be dismissed.

We are not irrevocably bound by the one allegation in the petition for appeal; we can, and should, look behind that allegation for the purpose of determining the judgment from which the defendant intended to appeal. In Tennent v. Caffery, 163 La. 976, 113 So. 167, the court refused to dismiss an appeal even though the order of appeal, on its face, granted an appeal to the defendant only from a judgment dissolving a restraining order, from which no appeal was allowable. The court held that it thought the appeal was intended to be taken from a judgment refusing a preliminary injunction, which was an appealable judgment.

In General Motors Acceptance Corporation v. Deep South Pest Control, Inc., 247 La. 625, 173 So.2d 190, the case upon which the majority principally rely, the court noted that the appellants tacitly recognized the appeal was taken from a judgment overruling a motion for a new trial by resting their case in the appellate court on the ground that such a judgment was appealable. That is not the case here.

Here the appellant has argued vigorously that he had intended to take his appeal from the judgment of March 25, 1965 and his position is supported by the appeal bond he furnished. The first paragraph of that bond reads as follows:

"WHEREAS, judgment has been rendered by the Civil District Court for the Parish of Orleans in the above entitled and numbered cause in favor of KIRKEBY-NATUS CORPORATION and against WILLIAM T. CAMPELL in the amount of FOUR HUNDRED FOURTEEN THOUSAND TWO HUNDRED AND NO/100 ($414,200.00) DOLLARS (with interest at the rate of 8% per annum from November 7, 1964 until paid, 10% attorney fees and all court costs), and the said WILLIAM T. CAMPBELL, defendant, has this day obtained an order of devolutive appeal therein, conditioned upon the furnishing of this obligation." (Emphasis ours.)

Appeals being favored and the designation of the judgment date appearing to be nothing more than a clerical error, I am of the firm opinion that the appeal should not be dismissed.

I respectfully dissent.


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