(dissenting).
The decision in the present case enjoins the execution of a Court of Appeal judgment for $86,000 in favor of private land*67owners against a road-building contractor and its surety. Although conceding finality of the judgment, the majority justifies the result on the ground that the landowners were entitled to no more than $25,000 and the equity powers of the court should be exercised to,prevent the execution of the judgment. I disagree with the decision.
By both constitutional and statutory provisions, a judgment of the Court of Appeal becomes final and executory when the delay for applying for a rehearing has expired and no application has been filed. La. Const. Art. 7, Sect. 11; LSA-C.C.P. Art. 2167. See Bertucci v. Bertucci, 224 La. 364, 69 So.2d 502 and State v. Moore, 175 La. 607, 143 So. 707.
After a judgment containing no vice of form becomes executory, the Louisiana Code of Civil Procedure provides only one method for modification of the substance of the judgment, that is, an action of nullity. LSA-C.C.P. Arts. 1951-2006. Such an action can be based only on fraud or ill practices. LSA-C.C.P. 2004.
The Department of Highways suggests no fraud or ill practices in the present case. Concededly, the Court of Appeal fully considered the questions relating to the amount of the award in arriving at its judgment. When the quantum has been fully considered by the appellate court, an excessive award affords no ground for enjoining the execution of the final judgment. LSA-C.C.P. Arts. 2004, 2005; Reiley v. Atlas Construction Company, 245 La. 595, 159 So.2d 688; McMicken v. Millaudon, 2 La. 180. Compare 49 C.J.S., Judgments § 359, pp. 715-716.
LSA-C.C.P. Art. 2005 explicitly provides :
“A judgment affirmed, reversed, amended, or otherwise rendered by an appellate court may be annulled only when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court.”
The reason underlying the above Article is that a litigant should have no second day in court after the point at issue has been fairly litigated to conclusion in an appellate judgment. See State ex rel. Pelletier v. Sommerville, 112 La. 1091, 36 So. 864. The Article speaks quite clearly and leaves no room for the exercise of equity powers to bar enforcement of such a judgment.
The majority, in my opinion, has weakened the security of final judgments by establishing a basis for reopening them under an allegation of inequity. Since I am convinced the court erred in so doing, I respectfully dissent.
Sanders and Summers, JJ., are of the opinion a rehearing should be granted.