Opinion
No. 11328.
January 13, 1981.
APPEAL FROM SECOND CITY COURT OF NEW ORLEANS, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE LORAIN F. WINGERTER, J.
James C. Witcher, II, New Orleans, for defendant-appellee.
Jacob Kansas, Carey R. Varnado, New Orleans, for plaintiff-appellant.
Before SAMUEL, CHEHARDY and GARRISON, JJ.
This is an appeal from a judgment of the Second City Court, denying Arlen Realty Management's action to nullify a judgment rendered against it by the Small Claims Court.
Shortly before November 28, 1978, Arthur T. Fields, Jr., in proper person, filed suit in the Small Claims Court, seeking damages in the amount of $300.00 from the defendant, Arlen Realty Management for damages sustained by Mr. Fields when the defendant-lessor failed to repair the leased premises. The premises were damaged during the May 3rd flood of 1978.
Service of process was made on December 4, on an attorney who had represented the corporation on numerous occasions. On December 14, 1978, the attorney, Jacob Kansas, filed an exception of insufficiency of service of process saying that he did not represent Arlen Realty Management. On that same day, Mr. Kansas requested that the trial, which had been set for December 5, 1978, be continued.
On February 21, 1979, service was issued on Arlen Realty Management through the Secretary of State's office. However, service was not made on the defendant. This attempted service was accompanied by notice of the new trial date, March 19, 1979. On that date, neither Mr. Kansas nor an attorney representing Arlen were present for trial. The Small Claims Court rendered judgment in plaintiff's favor.
A notice of signing of the judgment was issued to the Secretary of State's office on March 20, 1979. On March 28, 1979, the Secretary of State's office made a return indicating that service was made on L. E. Kleinpeter.
Mr. Kansas, on behalf of Arlen Realty Management applied to the Louisiana Supreme Court for supervisory writs. The writ disposition handed down on June 19, 1979 reads as follows:
"Writ denied.
JLD FWS JAD PFC FAB
TATE AND MARCUS, JJ. concur. The defendant's remedy was an independent action in nullity. La.C.Civ. Procedure, Articles 2001, et seq."
Additionally, on April 25, 1979, Mr. Kansas had filed an action to nullify the judgment of the Small Claims Court. This action was filed in the Second City Court inasmuch as the trial judge believed there was no procedure to nullify judgments in the Small Claims Court, which is not a court of record.
The action to nullify was tried on November 26, 1979, at which time the trial judge dismissed the action to annul, granting judgment in favor of Mr. Fields. From the judgment rendered on November 26, 1979, Arlen Realty Management appeals.
Generally, there is no record of Small Claims proceedings, there being no right to appeal from a judgment of that court. R.S. 13:5209. In the instant case, however, the Second City Court has aided us greatly, not only by attempting to construct a record but also by allowing the action to be filed under its jurisdiction.
On appeal, Arlen Realty Management argues that a default judgment could not be taken against it as it had made no general appearance. We agree. The filing of an exception of insufficiency of service of process does not constitute a general appearance. We agree with the trial court's delineation of the purposes of the Small Claims Act and mourn the defeat of so noble a purpose. However, where fundamental procedural due process requires a hearing, we cannot allow so basic a right to be trampled in the name of "expeditious justice".
For these reasons, the judgment of the Second City Court, dated November 26, 1979, is reversed and we render judgment as follows:
IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of Arlen Realty Management, Inc. and against Arthur T. Fields declaring that the judgment rendered on March 20, 1979, in the case entitled "Arthur T. Fields vs. Arlen Realty Management, Inc." No. SC51, is hereby vacated, annulled and set aside.
REVERSED AND RENDERED.