Blanck v. Speckman , 23 La. Ann. 146 ( 1871 )

Howe, J.

This action was instituted in 1863 to annul a judgment' rendered in 1859. There was judgment in favor of defendants, and the plaintiff has appealed.

The only cause of nullity relied upon by tho plaintiff, appellant, is-found in the fact that the suit of Speekman v. Blancic was an action, for damages; that a default was entered, and that this default was confirmed and judgment rendered by the court without the intervention of a jury.

The Code of Practice, under the section “Of Judgment by Default,”' provides, article 313, that “when, from the nature of the demand, damages are to be assessed, the court will direct a jury to be summoned to find the same in the same manner as if the defendant had answered, and the court will give their judgment in conformity with tho verdict of tho jury.”

Tiie appellee contends, and so the court below decided, that the omission to call a jury in that ease was an'irregularity which might have been remedied by appeal, but which can not be urged, after a lapse of nine years, by an action of nullity,

The causes of nullity of a judgment are two-fold: First, those which relate to the method of procedure and are called vices of form; second, those which appertain to the merits of the question tried. The want of citation is an example of the first class; the'obtaining of a judgment on forged documents is an example of the second class.

It is evident that the cause urged by the plaintiff, if any cause it be, would fall into the first class, being an alleged vice of form. These vices of form are catalogued in article 606, C. P. They are arranged in four paragraphs, but may be reduced to “three classes:

First — Whore the judgment debtor could not stand in judgment.

Second — Whore the judgment debtor had not been cited; and

Third — Where the court was without jurisdiction ratione materia.

We do not understand that a judgment may be annulled for any other vices of form, than those specified in article 606. The language of the article is plain: “ The vices of form for which a judgment can bo annulled are tho following,” etc.

It is otherwise with the causes of nullity which appertain to the merits of tho question .tried. They are referred to in article 607, and it has been often held that the cases specified in this article are merely illustrative and not exclusive; and that a judgment may be annulled upon equitable grounds, in case an appeal would have afforded no remedy, and a real injury would be sustained, and the party had not been guilty of laches, and a just defense was alleged and proved. 1 Rob. 523 ; 3 An. 346; 11 An. 33. And the reason of this distinction is plain. It is easy for the Legislature to say, and they have said in article 606, in what cases a judgment should be annulled for vices of form; while it would be difficult and dangerous to attempt to define and thus to limit the possible cases of error and fraud which might necessitate equitable relief. ‘

The plaintiff’s case must, therefore, fail. It is not expressly provided for in article 606, nor is it included in the more flexible article 607. The irregularity of which he complains, is not a fundamental defect, like the want of citation, nor is the judgment radically de- \ fective, like that rendered against a minor without the assistance of his tutor, or by a court without jurisdiction ratione materice. He had an ample remedy by appeal, and there was no error or fraud. 9 La. 79; 9 An. 197; 9 An. 428; 10 An. 641; 14 An. 656.

Judgment affirmed.