State ex rel. Sehrt v. Registrar of Conveyances , 14 La. App. 30 ( 1930 )

WESTERFIELD, J.

This is an appeal from a judgment on a rule to tax costs. The appellant Stanley A. Harvey was joined in a mandamus proceeding with the Registrar of Conveyances for the parish of Orleans, brought by John J. Sehrt and Sidney J. Courtin, for the purpose of erasing an inscription which the said Harvey had caused to be put of record in the conveyance office, and which effected certain property belonging to Sehrt and Courtin. The mandamus was made peremptory, and the Registrar of Conveyances was ordered to cancel and erase the inscription complained of. The judgment, however, failed to condemn Harvey, in fact, failed to mention his name. After the judgment thus rendered in the mandamus proceeding had become final, no application for a new trial having been made and no appeal taken, a rule was taken against Harvey and the Registrar of Conveyances in which, after reciting that the costs expended by plaintiffs amounted to $23.25, judgment was prayed for against the defendants in rule for that amount.

A judgment was rendered on that rule condemning Harvey to pay the costs referred to and dismissing the rule as to the Registrar of Conveyances. This appeal was prosecuted from that judgment.

The question presented for our consideration is whether a definitive judgment may be amended by rule so as to condemn a party defendant who, by inadvertence, was not cast in the original judgment. Our answer must be in the negative. The effect of the silence of a judgment with respect to one of two defendants is equivalent to the rejection of plaintiffs’ demand as to that defendant. State vs. Nephler, 35 La. Ann. 365.

All issues presented by the pleadings must be considered as disposed of by final judgment, whether the judgment .be silent as to some of them or not. Johnson vs. Mattie, 6 Orleans App. 218.

Code of Practice, article 556, declares that definitive judgments may be revised, set aside, or reversed by a new trial, by appeal, by action of nullity, or by rescission.

Article 548 of the Code of Practice reads as follows:

“A judgment, when once rendered, becomes the property of him in whose favor it has been given; and the judge can not alter the same, except in the mode provided by law.” See Cassard vs. Tracy, 52 La. Ann. 835, 27 So. 368, 49 L. R. A. 272.

To interpolate Harvey’s name in the judgment would be a radical alteration which should not be permitted in the guise of an interpretation.

In the case of Factors’ & Traders’ Insurance Company vs. New Harbor Protection Company, 39 La. Ann. 583, 2 So. 407, 409 where a rule was made absolute allowing interest in a judgment where none was allowed in the original judgment upon - the ground that in so doing the judgment was merely interpreted and not altered, the court said:

“The judgment appealed from, under the guise of a professed interpretation, is really an amendment and alteration of the original judgment, in clear violation of the laws on that subject. Code Pr. 547, 548, 556.”

See, also, American Multigraph Sales Co. vs. Globe Indemnity Co., 11 La. App. 358, 123 So. 358, and authorities therein cited.

There being no judgment rendered against Harvey, he cannot be condemned to pay costs.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of the defendant Stanley A. Harvey, dismissing the rule to tax costs in this proceeding.