State ex rel. Pelletier v. Sommerville

Citations

• 112 La. 1091
• 36 So. 864
• 1904 La. LEXIS 517

Syllabus

<p>NULLITY OF JUDGMENT — ACTION—WHEN LIES— LAGIIES — APPEAL—IN JUNCTIO N.</p> <p>1. Where the cause for which a judgment from which an appeal has been taken may be annulled is not apparent upon the face of the record, the court by which such judgment was rendered- is the only one in which the nullity can be demanded.</p> <p>2. The remedy by action for nullity of judgment, as provided by Code Prac. art. 607, is independent of the remedy by appeal, but is not intended as a substitute therefor, or as a means of affording another day in court to a litigant who has. neglected his opportunity. Its purpose is to furnish relief against fraud which has operated in the obtention of a judgment, which makes no appearance in the record, and for which an appeal would afford no remedy.</p> <p>3. The case taken up by an appeal is the case heard and decided in the court of first instance, and which is contained in the record, whilst the case presented, within the meaning of Code Prac. art. 607, in an action for the nullity of the judgment appealed from, is one which has not been heard or decided, and which is dehors the record lodged in the appellate court; hence the action of nullity and the appeal may be maintained at the same time without conflict.</p> <p>4. If the conditions precedent imposed by law for the taking of an appeal, whether suspensive or devolutive, are not complied with no jurisdiction is vested in the appellate court, and it can do nothing with the case save dismiss the appeal (unless it be, possibly, in the exercise of a supervisory jurisdiction); and it cannot be said that a judgment from which no appeal has, in • contemplation of law, been taken, is the judgment of the appellate court.</p> <p>5. Where an' action for nullity of judgment properly lies, an injunction may issue to restrain the execution of the judgment attacked notwithstanding that a suspensive appeal therefrom has been dismissed and a devolutive appeal has been' subsequently taken and perfected and