John Chaffe & Sons v. Walker

Concurring Opinion.

Fenner, J.

I do not consider that Art. 555 of the Code of Practice, has any application. Its sole and avowod object is to regulate the effect of judgments.

Now, in many. States of the Union and formerly in this State, it was one of the effects of a judgment that, from its simple entry on the docket of the court, it operated a lien or mortgage upon the property of the debtor. If that were still the case, there would be less difficulty in holding that Art. 555 would defeat such effect until the last day of the term. But the Code of Practice has obliterated this as an effect of judgments, by declaring that “ they shall not hereafter affect the property of the. person against whom such judgments were rendered, all laws to the contrary notwithstanding. Such judgments must be recorded at the office of mortgages, in order to give the party a judicial mortgage, pursuant to the provisions of the law.” Art. 545.

The “ provisions of law” referred to are those found in the Civil Code, which are thus recognized and adopted by the Code of Practice, except that the latter controls and corrects the loose language of Art. 3321, which says that “the judicial mortgage is that resulting from judgments,” etc , because the Code of Practice expressly declares that no such mortgage shall result from judgments.

Reading Art. 545, C. P. and Arts. 3321 and 3322, C. C. together, the clear and obvious meaning is that a judicial mortgage is that resulting *41from the recording of a judgment, and ;i takes effect from the day on which the judgment is recorded in the manner hereafter directed.”

Now, plaintiffs present here a judgment for money, rendered and signed by the judge and recorded in the manner directed by law on April 3,1883, and he claims that a judicial mortgage resulted from that record and took effect from the day of record.

Intervenors say: “ No ; under Art. 555, C. P., the judgment must be considered as having effect only from the last day of the term, and therefore your mortgage takes effect, not from the date of record as expressly directed by Art. 3322, C. C., but only from the last day of the term of the court; and inasmuch as our judgment, though only recorded on April 20, 1883, took effect concurrently with yours, our judicial mortgage is equally concurrent with yours.”

This contention of intervenors would introduce an element of uncertainty and confusion in our mortgage records utterly hostile to the whole spirit and intention of our legislation on that subject.

With regard to the rank of mortgages resulting from the inscription of country judgments, the examiner could no longer be guided by the plain land mark set by the Code of the date of record, but would be sent under a roving commission to ascertain what was the last day of the term of court at which the judgment was rendered. Such inscriptions are often made in parishes distant from that where the judgment was rendered. They last for ten years and may be indefinitely prolonged by re-inscription. Thus, a party in the parish of Plaquemines finding an inscription of a judgment rendered twenty years ago in the parish of Ouachita might be confronted with the necessity of ascertaining what was the last day of the term at which it was rendered.

This, in my judgment, is utterly untenable, and the plain alternative presented is, either that the inscriptions of these judgments took effect from their respective dates, or they did not take effect at all; and the recorder erred in admitting them to record without a certification that the term of court had expired, which, under intervenors’ theory, could alone give effect to the judgment and, as an inevitable corrollary, to its inscription.

Now, although Art. 555 is an original article of the Code of Practice, it is not disputed that under the express authority of Art. 546, C. P., judgments'in the country parishes have been habitually signed and recorded before the last day of the term, as was done by all parties in this very case, and our jurisprudence furnishes no precedent of any question having ever been raised as to such inscriptions taking effect from the date when made according to the express provision of Art. 3322, C. C.

*42The plain solution of tliese difficulties is found in the proposition that the validity and effect of the inscription of judgments are governed, not by the Code of Practice, but by the Civil Code; and that, under the latter, we are not concerned with any questions concerning the effect of judgments or when they have effect, but simply with the inquiry whether the judgment recorded existed as a final judgment within the meaning of C. C., art. 3321; for, if it did so exist, whatever its effects, the record thereof, under the unambiguous language of the code, created a judicial mortgage effective from the date of inscription.

Art. 555, C. P., must be construed with other articles in the same section, and the language thereof, that “judgments shall be considered as having effect only from the last day of the term,” finds important limitations.

Thus, under art. 546, the judgment was properly and validly signed by the judge before the expiration of the term; under art. 539, it was a definitive or final judgment; tinder articles 547 and 558, the judge could not, in any manner, alter or amend it; and under art. 548 it had become the property of the party in whose favor it was rendered and entirely beyond the control of the judge.

It follows that, notwithstanding the language of art. 555, the judgment did have many and most important effects from the moment of signature; and, in my opinion, it had all the effect necessary to constitute it a final judgment within the meaning of the Civil Code, entitled to be recorded and to operate as a judicial mortgage from the date of inscription.

I am satisfied that Art. 555 refers to effects independent of, and subsequent to, the creation and existence of the judgment, and that those effects alone, such as execution, delays for appeal, etc., are deferred to the last day of the term.

While this construction gives advantage to the diligent or fortunate suitor, such advantage is not hostile to the spirit of the law. The opposite construction gives advantage to the fraudulent debtor, who, after condemnation by final judgment, would be left a considerable period, during which he might dispose of or establish mortgages on his property, while the hands of his judgment creditor would be tied. I think he gets a sufficient advantage in the postponement of the execution, and, until the law-maker repeals or amends the present articles of the Civil Code, I shall not consent to its extension.

While it is true that, in case of conflict between the Civil Code and Code of Practice, the latter prevails; yet the two must be reconciled when possible, and only in case of irreconcilable conflict would any *43court be justified in disregarding unambiguous provisions of tbe Civil Code.

I, therefore, eoncnr in the decree.