Opinion
No. 6599.
December 30, 1974.
APPEAL FROM FIRST PARISH COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE CYRIL J. GRACIANETTE, J.
Jesse S. Guillot, New Orleans, for plaintiff-appellant.
Edwards, Porteous Amato, Jacob J. Amato, Jr., Gretna, for defendant-appellee.
Before REDMANN, BOUTALL and BEER, JJ.
Little purpose will be served by a detailed recitation of the unusual procedural developments which bring this matter before us. It is sufficient to say that both parties and their attorneys have, at one point or another in the proceedings, been disadvantaged to some extent. This matter has been in constant legal limbo insofar as adjudication of the merits of the case are concerned. From the original filing in November 1971 until the present, the simple issues raised in the original petition and answer have never been heard.
The ends of justice are best met by our remanding this case for a trial on the merits.
The judgment of the First Parish Court for the Parish of Jefferson read, rendered and signed on July 24, 1974 is hereby annulled. A trial on the merits is ordered. The funds in controversy are to be placed in the registry of the First Parish Court. Distribution of those funds as well as costs of these proceedings to depend on final disposition of this matter following trial on the merits.
Annulled and remanded.
REDMANN, J., dissenting.
This is an appeal from a "judgment" which ordered return of $963.49 seized in execution of a then definitive default judgment (rendered by a Jefferson court after citation by an Orleans court) which was itself subsequently annulled by a second now definitive judgment (which further ordered a new trial).
Thus the "judgment" sought to be appealed from ordered, in effect, the execution of the definitive judgment of nullity. That "judgment" (whether or not appealable) is correct. Plaintiff, never having appealed (nor sued for nullity of) the judgment of nullity, has no entitlement to keep defendant's money. Nor does plaintiff have any privilege or lien upon any of defendant's money that authorizes us to order any money placed into the registry of the court.
We should affirm and let the already-ordered new trial proceed.