Wilson Sporting Goods Co. v. Alwes

ROGERS, Justice.

Claiming that defendant was indebted to it in the sum of $364.36 on an open account, the plaintiff corporation brought suit to obtain judgment for the amount alleged to be due. Plaintiff attached to its petition what it alleged is a written acknowledgment of the indebtedness signed by the defendant. An exception of no right or cause of action filed by the defendant was overruled. Defendant then filed his answer denying the indebtedness and claiming by reconvention, the sum of $450 as damages allegedly suffered by him as the result of plaintiff’s suit. Defendant in his answer prayed for a trial by jury, apparently only of the re-conventional demand.

Alleging that the court was without jurisdiction, plaintiff filed an exception to defendant’s reconventional demand and plea for a trial by jury. After hearing the parties on the exception, the trial judge reached the conclusion that the defendant was without right to institute and prosecute the reconventional demand and, consequently, was' not entitled to a trial by jury. Accordingly, the trial judge rendered a judgment dismissing the reconventional demand and denying the trial by jury.

On defendant’s application, this court issued a writ of certiorari and a rule nisi for the purpose of reviewing the ruling of the trial judge. Plaintiff has filed a motion in this court asking that the writ of certiorari be recalled and defendant’s application be dismissed on the ground that in making his application the defendant had failed to comply with the requirements of section 7 of Rule XIII of this court prescribing that copies of the petition for remedial writs must be delivered or mailed to the trial judge and to the adverse party, and that the fact such delivery or service has been made and the method thereof must be verified by the affidavit of the petitioner or his attorney.

Relator has filed an answer to plaintiff’s motion to dismiss his petition for the remedial writs. In his answer to plaintiff’s motion, relator shows that he complied with section 2 of Rule XIII by giving notice orally and in writing to the trial judge and to pjaintiff’s attorney of his intention to apply for the writs and that the giving of such notice disposed of whatever right plaintiff’s attorney had to complain because, through oversight, relator failed to deliver or mail a copy of his petition for the writs to the trial judge and to the plaintiff’s attorney. Further answering plaintiff’s motion, relator avers that while, under the provisions of Rule XIII, plaintiff’s contention might have been ground for the Supreme Court to refuse at that time to issue the writs, once the writs have been issued, under the jurisprudence of the State, plaintiff’s motion has no merit whatsoever and no basis on which to stand. Wherefore, relator prayed that the plaintiff’s motion be denied.

The affidavit of relator’s attorney attached to the petition for the writs merely alleges that all the allegations of the petition are true and correct, and that written notices of defendant’s intention to apply for the writs were delivered to the trial judge and to the attorney for the plaintiff. Nowhere in the relator’s petition nor in the affidavit attached thereto is it shown that copies of the petition were delivered or mailed to the trial judge, the plaintiff, or to plaintiff’s attorney.

Relator in his answer admits that, through oversight, he failed to comply with the requirements of section 7 of Rule XIII as set forth in plaintiff’s motion to recall the writs, but relator contends that the error was rectified by the giving of the notices of his intention to apply for writs and by the action of this court in issuing the writ of certiorari and rule nisi.

Rule XIII of this court sets forth the requirements for applying for writs of review, remedial writs, and rules nisi. 197 La. xli. Section 2 of the Rule provides that the party or attorney intending to apply for a writ of certiorari or review, or for any other writ, must give such notice to the judge whose ruling is complained of and to the adverse party or parties as may be deemed necessary to stay further proceedings pending the application, with the further provision that the failure to give such notice will not of itself be sufficient cause for dismissing the application or recalling or rescinding the writ or rule nisi. This section of the rule provides for two classes of notice to be given by the relator of his intention to apply for writs: (1) where a judgment or ruling of the court of appeal is involved, and (2) where a judgment or ruling of the court of original jurisdiction is involved.

The notice which relator gave to the trial judge and to the plaintiff’s attorney of its intention to apply for remedial writs was not effective for any other purpose than to stay all proceedings in the suit pending relator’s application to this court. Section 2 of the Rule, under which the notice was given, so provides in plain words. The section further provides that failure to give the notice would not of itself be sufficient cause for refusing the application or recalling the writ or rule nisi, if issued.

The same provision was substantially embraced in section 1 of Rule XV of this court, as amended on January 29, 1923, which was under consideration by the court in the case of Bauman v. Pennywell, 160 La. 555, 107 So. 425, 426, cited by relator. In answering the charge of one of the respondents that no notice of relator’s intention to apply for the writs was given as required by Rule XV, the court in that case, after quoting section 1 of the Rule as amended, ' including the proviso “that' a failure to give such notice shall not, of itself, be a sufficient cause for dismissing the application, or for recalling a rule nisi,” properly declined to dismiss relator’s application for remedial writs for want of written notice to respondent of relator’s application.

The fact that relator in this case gave the trial judge and attorney for plaintiff the notice prescribed by section 2 of the Rule did not relieve relator of the obligation of complying with the requirements prescribed by section 7 of the Rule.

Section 7 of Rule XIII relates solely to applications for any writ except a writ to review a judgment of the Court of Appeal. This section provides, among other things, that: “Before the petition is presented to the Supreme Court, a copy of the petition must be delivered or mailed to the jrjdg'e whose order or ruling is complained of, or to any other officer whose action is complained of, and the adverse party or parties to the proceeding, or to his or their attorney of record, in order that the judge or other officer, or the adverse party or parties, may submit immediately any reason that he or they may have to urge in opposition to the petition. The fact that such delivery or service of a copy of the petition has been made and the method of the delivery or service must be verified by the affidavit of the petitioner or of his attorney.”

Under the plain provisions of the quoted portion of Section 7 of Rule XIII, it is the mandatory duty of a relator, before presenting his petition for remedial writs to the Supreme Court, to serve a copy of the petition either by delivery or by mail on the trial judge and the adverse party or his attorney, to the end that the judge or the adverse party be given the opportunity of submitting immediately any reason that he or they may have for opposing the petition. In other words, the rule of court prescribes a condition precedent which must be adhered to in order that the relator may properly bring before the court for its consideration his application for remedial writs.

The fact that the court inadvertently issued the writ of certiorari and rule nisi in this case is no reason why the court should not recall the writ and rule when its attention has been properly directed to the failure of relator to follow the mandatory provisions of the law governing applications for remedial writs.

It is not disputed that if the court’s attention had been directed to relator’s failure- to eomply with the rule of court invoked by respondent, it would have been incumbent upon the court to deny the application. This being true, we see no reason why a relator, who has failed to' comply with the rule and whose application has been inadvertently granted, should be in a better position than a relator who has failed to comply with the rule but whose application has been refused because the omission was noticed before the application was granted.

The rule of court should be enforced against all alike or otherwise it should be abrogated. There is no middle ground. Nor is there any room in this case for the exercise of the court’s discretion, since, by reason of relator’s failure to comply with the requirements of the rule, its application was not properly presented to the court for its consideration.

It is true that in s^me cases where writs of review have been granted, directed.to the Court of Appeal, this court has refused to dismiss the proceeding on the respondent’s motion because the writ had been granted and the record upon which the Court of Appeal acted was before the Court. See Pipes v. Gallman, 174 La. 265, 140 So. 43; Hatten v. Haynes, 175 La. 743, 144 So. 483; Laurent v. Unity Life Ins. Co., 189 La. 426, 179 So. 586; Davies v. Consolidated Underwriters, 199 La. 459, 6 So.2d 351. In each of those cases the relator failed to annex to his application one of the documents enumerated in section 5 of Rule XIII. The reason for the court’s action in such cases is briefly set forth in Laurent v. Unity Life Ins. Co., 189 La. at page 436, 179 So. at page 589, in these words: “The requirement that certain documents shall accompany an application for a writ of review is intended for our convenience and information so that we might readily determine whether the case should be ordered up for decision by this court.”

According to the plain language of section 7 of Rule XIII, the requirement that in applications for remedial writs a copy of the petition must be delivered or mailed to the judge and to the adverse party, or his attorney, is for the convenience and information of the judge and adverse party in order that the judge or adverse party “may submit immediately any reason that he or they may have to urge in opposition to the petition.” The fact that the requirement might indirectly work for the convenience and information of the court does not impair the primary purpose of the requirement — the convenience and information of the trial, judge and the . adverse party.

In relator’s answer to plaintiff’s motion to recall the writ of certiorari and rule nisi and in relator’s brief, our attention is directed to the case of Lacaze v. Hardee, 199 La. 566, 6 So.2d 663, 664, which relator claims has decided the identical question at issue in this case. We do not understand that the decision in the Lacaze case has established a legal principle different from the one we are maintaining in this case.

In his brief relator quotes the following language appearing in the court’s opinion in the Lacaze case: “The mere failure to give notice to the attorney or the judges in itself would not be sufficient cause to dismiss the application for the writ or recall or rescind the writ or the rule nisi. Bauman et al. v. Pennywell et al., 160 La. 555, 107 So. 425.” The quotation is reproduced in relator’s brief as if it constituted a complete sentence. But a reference to the court’s decision discloses that it forms only the last part of a complete sentence which reads as follows. “Furthermore, under Section 2 of Rule 13 of this Court, the mere failure to give notice to the attorney or the judges in itself would not be sufficient cause to dismiss the application for the writ or recall or rescind the writ or the rule nisi. Bauman, et al. v. Pennywell et al., 160 La. 555, 107 So. 425.” Hence, it will appear that the statement of the court, in the Lacaze case, relied on hy relator, was made in reference to section 2 of Rule XIII, which, as we have shown, has no bearing on this case.

It will appear from an examination of the court’s opinion in the Lacaze case that the Court of Appeal had rendered judgment against defendants (relators) and had refused to consider their application for rehearing. This court granted a writ of certiorari and rule nisi to review the action of the Court of Appeal. Plaintiff (respondent), in her return, asked that the writ be vacated and the rule discharged for the reason, among others, that the relators had neither served upon nor delivered to the judges of the Court of Appeal, or the respondent or her attorney a copy of the application for the writ before filing the petition in this court, as required by Section 7 of Rule XIII.

This court held that: “Under the amendment which we made on May 29, 1941 to Section 7 of Rule 13 of this Court, the mailing of copies of the petition for the alternative writ of mandamus to the judges of the Court of Appeal and the attorney of record of the respondent, respectively, is sufficient notice to them. Furthermore, under Section 2 of Rule 13 of this Court, the mere failure to give notice to the attorney or the judges in itself would not be sufficient cause to dismiss the' application for the writ or recall or rescind the writ or the rule nisi. Bauman et al. v. Pennywell et al., 160 La. 555, 107 So. 425.”

The decision of the court on this issue is reflected in paragraph three of the syllabus of the case, as it appears in the official report, as follows: “Where relators applied for alternative writ of mandamus to compel Court of Appeal to consider their application for a rehearing in a certain action, mailing of copies of the petition to the judges of the Court of Appeal and the attorney of record of the adverse party in the action was sufficient ‘notice’ to them, and failure of relators to deliver copies of application for the writ to judges of the Court of Appeal or to the attorney before filing application in the Supreme Court was not sufficient cause to justify dismissal of the application for the writ. Rules of Supreme Court, rule 13, §§ 2, 7.”

For the reasons assigned, the motion to dismiss is sustained, and accordingly the writ of certiorari herein granted is recalled and the rule nisi herein issued is dismissed at relator’s cost.

O’NIELL, C. J., and HIGGINS and FOURNET, JJ., dissent.