(100 So.) The court ruled that where a charter exists valid on its face it cannot be collaterally attacked. Counsel excepted to this ruling, and the case was closed. After the argument or at its conclusion counsel for defendant contended that the answer denied the existence of the plaintiff corporation. Counsel for plaintiff announced that had he known the corporate existence of his client was at issue he would have filed the charter and he therefore applied to the court to reopen the case for the purpose of permitting him to do so. The court overruled an objection to the reopening of the case and permitted the filing of the charter. [3] The reopening of a case is a matter within the discretion of the court and under the circumstances disclosed by this record the court's discretion was correctly and equitably exercised. [4] The filing of the charter in evidence and the admission in the transcript (page 81) establish the existence of at least a de facto corporation. "If the state acquiesce in the usurpation of corporate powers, individuals cannot complain. This rule finds authority in Cyc. vol. 10, p. 256, wherein it is said that the rightfulness of the existence of a body claiming to act, in fact acting, in the face of the state as a corporation, cannot be litigated in an action between private individuals and the assumed corporation. * The rightful existence of a corporation cannot be raised in a collateral proceeding." New Iberia Sugar Co. v. Lagarde, 130 La. 393, 58 South. 18; Nelson v. T. & P. Ry. Co., 152 La. 117, 92 South. 754. This suit was filed in 1919, and the authority of the general manager to file it is conferred by section 16 of Act 267 of 1914, which is as follows: "That the manager of a corporation organized under the laws of Louisiana, or of a foreign corporation, doing business in this state, shall have power in the name and in behalf of the corporation to authorize the institution of any suit and other legal proceedings, and no exception of want of authority shall lie on the part of any defendant." [5] Defendant's denial that he is indebted to plaintiff or that he had any dealings with plaintiff is not sustained by the record. There is no averment in the answer that he would not have dealt with plaintiff. "In onerous contracts, such as sale, exchange, loan for interest, letting and hiring, the consideration of the person is by law generally presumed to be an incidental cause, not a motive for a contract." R. C. C. art. 1836; Carlisle v. The Eudora, 5 La. Ann. 15. The contract sued upon consists of two parts. It was filed with the supplemental petition and marked as Exhibits A and B, respectively. Both parts are in the form of letters. Exhibit A is dated February 21, 1919, and is as follows: "Gerth's Realty Experts, Liverpool, London & Globe Bldg., New Orleans, Louisiana.-Gentlemen: I hereby give you the exclusive agency in my tract of land near Pascagoula, in Mississippi, comprising about 11,000 acres with the same for the period of four months from the sale and exclusive right to sell and resell this date. "The minimum price which I will accept for the property is $75,000 (seventy-five thousand dollars). Your commission is to be 10% on the actual selling price. "You are to pay the advertising expense and further incidentals necessary. "Yours very truly, Transcript, p. 15. Thomas W. Kracke." fixes the amounts and terms of payments, reThis letter reduces the price of the land, duces the commission to be paid the sales agent to 5 per cent. and is signed by Thos. W. Kracke for himself individually and for the Gulf Coast Orchard & Products Co., in his capacity as the president thereof. On May 7, 1919, E. L. Martin submitted to Thomas W. Kracke and the Gulf Coast Orchard & Products Company a proposal to purchase the entire property and to pay $68,000 therefor. The proposal provides for the cash and subsequent payments and for certain releases. This proposal was accepted on the same day, the acceptance appearing on the last sheet of the proposal, following the signature of E. L. Martin, in the following words: "New Orleans, La., May 7, 1919. "I hereby declare that I have read the above and foregoing offer, and now accept same, in my capacity as the representative of the Gulf Coast Orchard & Products Co., and individually. "Thomas W. Kracke. "Gulf Coast Orchard & Products Co. Transcript, pp. 16, 17, 18, 19, 20. The testimony of Charles S. Gerth explains the reason for the reduction of the commission from 10 per cent. to 5 per cent. and the reduction of the price of the land to $68,000. Transcript, p. 18. Defendant's denial that the contracts sued upon were carried out by Charles S. Gerth and that Gerth acted in bad faith are refuted by the record. [not deposited in the bank, because the original deed was never deposited. Transcript, pp. 62, 63, 74. Mr. Martin's attorneys notified defendants to come to the former's office to pass the sale. Defendant did not come at the appointed time to sign the deed, which had been prepared. Transcript, pp. 61, 62, 66, 67. Mr. Martin is anxious and willing to secure this property, but defendants have refused to transfer it to him. Mr. Martin has even filed suit against defendants in Mississippi for specific performance. Transcript, p. 51. "Mr. Martin has done everything that he agreed to do. He did not deposit the trust deed, as a trust deed corresponds to a Louisiana mortgage, and it was impossible for him to grant a mortgage until the property has been transferred to him, as it has been stipu lated. "The only effect of a deed of trust or com"If defendant relies on the nonperformance mon-law mortgage in the countries where they of the contract by plaintiff, he must allege the are used, is to establish a lien upon property.' fact in his answer. In pleading such nonper-Tillman, Trustee, v. Drake, 4 La. Ann. 16. formance, the facts which constitute the breach must be alleged. * 13 C. J. Contracts, pp. 738, 739. "Plaintiff claimed damages from the defendant for an alleged violation of the contract on which it declared on the specific ground set out. The action was not one for an account. Defendant unsuccessfully objected to the introduction of testimony on any other issue than that raised by the petition. The ruling of the court on that point was erroneous, and all evidence outside of that issue is disregarded." Canal Co. v. Milling Co., 119 La. 447, 44 South. 260. As is well said in brief of counsel for plaintiff: "The facts above disclosed show that plaintiffs have sold the property in question to a party able and willing to buy under the terms and conditions fixed, and that they have earned their 5 per cent. on $68,000, the 'actual selling price,' or $3,400. The reason that the sale has not been consummated before suit was filed is due to no fault on the part of plaintiffs or their buyer. The fault is due entirely to defendants not complying with their part of the agreement. Plaintiffs are therefore entitled to their commission. "As a general rule, where a broker finds a customer able and willing to enter into a transaction on the terms proposed by the principal, he cannot, unless there is a special con"Besides the above fatal objection to the tract to the contrary, be deprived of his right first defense made, the defense has not been failing on account of some fault of the printo his commission by reason of the transaction made out: Plaintiffs, through its manager, cipal, such as by the principal refusing to comCharles S. Gerth, had four months, from Feb-plete the transaction, as where he refused to ruary 21, 1919, to sell certain property for a 5 per cent. commission 'on the actual selling price.' Transcript, p. 15. On May 7, 1919, within 22 months from date of contract, plaintiffs, through their said agent, obtained a party willing, able, and ready to purchase said property on the terms of defendants, and sent the offer to defendants. Transcript, pp. 16-24, 48, 88. "Although $12,500 was to be deposited only when the offer was accepted (Transcript, p. 15), Mr. Martin, the party whom plaintiffs, through their agent, secured as a purchaser for this property, deposited that amount in the Citizens' Bank & Trust Company of Louisiana, the place designated by him in his offer, on May 29, 1919; that defendants were notified of said deposit (transcript, pp. 72, 76), and that it is there to-day (transcript, pp. 50, 51, 72, 75, 78). "The agreement of purchase further provided that $13,000 cash was to be paid when title was accepted, deed executed and delivered to the bank. Transcript, p. 16. It was also agreed that after the delivery of said warranty deed Mr. Martin would, in turn, deliver a deed of trust on said property to secure the balance due on the purchase price. Transcript, p. 18. The notes and trust deed were prepared, but * 9 C. J. Brokers, 623, 624; Land Co. v. Brown, 118 La. 944, 43 “A party having undertaken, on behalf of a foreign corporation, to effect a sale of an ice machine and accompanying paraphernalia to ed and fixed commission on the amount of the persons domiciled in this state, for a designatover to the purchaser and settled for at a sale effected, payable when the plant is turned given date, is entitled to payment of such commissions at that date, notwithstanding litigation arises between the contracting parties with ref erence to the vendor's fulfillment of its con tract, which operates a delay in the settlement between them." For the reasons assigned the judgment of the lower court is annulled, avoided, and reversed as to the Gulf Coast Orchard & Products Company and the suit is dismissed as to this corporation, and affirmed as to Thomas W. Kracke individually, the costs of ap-. peal to be paid by Thomas W. Kracke. Rehearing denied by Division B, composed of DAWKINS, LAND, and LECHE, JJ, (Syllabus by Editorial Staff.) 1. Divorce 160-Decree for plaintiff in her absence and without her consent, error. Suit by Mrs. Lula Miller against W. L. B. H. Lichtenstein and J. E. Harrington, Cook & Cook, of Shreveport, for appellee. THOMPSON, J. This is a case which, we are quite sure, is without precedent in the jurisprudence of this state. The wife is su in her favor on the ground of adultery committed by her husband, and the husband, while confessing his guilt, seeks to maintain the validity of the judgment. Where wife sought divorce for husband's adultery, but instructed counsel to withdrawing to annul a judgment of divorce rendered suit before issue joined, but counsel withdrew from the case and defendant thereafter admitted the charges, but prayed that plaintiff's demand be rejected, the full measure of his relief on plaintiff's failure to appear was judgment of nonsuit, under Code Prac. art. 536, and it was improper to render judgment of divorce for her in her absence and without her knowledge and consent. 2. Divorce 161-Counsel in divorce suit held bound to know that wife was unrepresented, where her counsel had withdrawn in open court. Where plaintiff's counsel in a divorce suit withdrew from the case in open court, and such withdrawal was noted on the minutes six days before defendant's counsel asked judgment in plaintiff's favor against his own client, such counsel was bound to know of the absence of plaintiff, and of any counsel representing her, and judgment in plaintiff's favor would be annulled, especially where defendant knew such facts. 3. Divorce 167-Suit to annul divorce judgment may be taken without appeal or after time for appeal has expired. Where judgment in favor of plaintiff wife in a divorce suit was rendered without her knowledge or consent after she had directed withdrawal of her suit, an action of nullity could be brought under Code Prac. art. 604, even if no appeal had been taken or if the time to appeal under article 573 had expired. The nullity propounded is that the judgment was rendered in the absence of the plaintiff and without her knowledge and consent and when she was not represented by counsel, and that the' action of her husband in obtaining the said decree amounted to ill practice and a fraud upon her rights. There was judgment in plaintiff's favor annulling the judgment, and the defendant appeals. In September, 1922, the plaintiff filed a suit for divorce charging her husband with having committed adultery with a party named in the petition, but before issue was joined she instructed her counsel to withdraw the suit. Her counsel did not comply with her request, but on November 13, 1922, addressed a letter jointly to the husband and wife advising them, quoting from the letter, that "On account of the fact that we have acted as advisers for both of you in the suit of Mrs. * we do not feel Miller v. W. L. Miller, * that we can conscientiously have anything further to do with the case." It was also stated in the letter that Mrs. Miller had advised the said attorneys to withdraw all papers signed by her. This letter was received by the defendant on the day that 4. Divorce 167-Plaintiff may prosecute or it was written. Just two days later, the atdiscontinue divorce suit at will. Plaintiff in divorce has absolute control of 5. Judgment 443 (1)-Courts have discre- Under Code Prac. art. 607, courts have dis- torneys of Mrs. Miller in open court formally withdrew from the case, and the withdrawal was noted on the minutes of the court. On the same day the defendant employed counsel to represent him, and through said counsel filed an answer specifically admitting each of the five paragraphs of the petition and concluding with a prayer that the plaintiff's demand be rejected. On the sixth day after the answer was filed and without any prior fixing of the case, in so far as the minutes and judgment show, the case was submitted by the defendant's counsel on the petition and answer, in the absence of the plaintiff and without her knowledge and consent, and in the absence of any counsel Judgment was rendered to represent her. Appeal from First Judicial District Court, on the following day granting the divorce Parish of Caddo; J. H. Stephens, Judge. în plaintiff's favor. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The plaintiff was not informed of the fact until more than 30 days thereafter, when she employed counsel and filed the present action in nullity. Article 536, Code of Practice, provides: "If, after the cause has been set down on the docket for trial, the plaintiff does not appear, either in person or by attorney, to plead his cause, on the day fixed for trial, the defendant may require that judgment of nonsuit be rendered against such plaintiff, with costs." [1] As we have stated, there was no issue raised by the answer of the defendant by way of reconvention, and while the answer admitted the adultery charge, the prayer was that the plaintiff's demand be rejected. In these circumstances it is clear that the full measure of defendant's relief was a judgment of nonsuit. C. P. art. 536; McDonogh v. Dutillet, 3 La. Ann. 660; Phillips v. Cassidy, 36 La. Ann. 288; Saunders v. Mangham, 42 La. Ann. 770, 7 South. 715; City of New Orleans v. Le Bourgeois, 50 La. Ann. 591, 23 South. 542. In concealing these facts and in withholding this information from his counsel, the defendant was not only guilty of a fraud on the legal rights of his wife, but of superinducing his counsel unwittingly to practice a deception on the court-an ill practice in legal procedure which cannot receive judicial approval. [3] It is argued that plaintiff's remedy, if there was error, was by an appeal, but the Code of Practice, art. 604, authorizes an action of nullity even if no appeal has been taken, or if the delay for taking the same has expired. The delay for a suspensive appeal from a judgment of divorce is 30 days from the signing of the judgment, and there is no devolutive appeal allowed. C. P. art. 573. This delay had expired when the plaintiff first received notice that a judgment had been rendered in her favor. Hence her only remedy was by an action in nullity. [4] It is further contended that the plaintiff was guilty of laches in discharging her counsel and not employing another, and for The plaintiff, had she so desired, might failing to take an appeal within the time have obtained judgment against the defend-prescribed by. law, and without dismissing ant on the face of the pleadings and on the admissions of the defendant in his answer, on filing a rule on the defendant to that effect. Act 300 of 1914; Tortorich v. Maestri, 146 La. 124, 83 South. 431; Dowie v. Becker, 149 La. 160, 88 South. 777. But there is no rule known to judicial procedure which would authorize the defendant to obtain a judgment on the face of the papers, in plaintiff's favor, in her absence and without her knowledge and consent. [2] The counsel for the defendant in this instance was without authority to act for the plaintiff and, indeed he does not pretend to have had any such authority. It is true the defendant's counsel disclaims having had any prior knowledge of the intended abandonment of the suit by the plaintiff, or that her counsel had withdrawn from the case; but the fact remains that the withdrawal of counsel had been made in open court and noted on the minutes of the court six days before counsel asked for judgment in plaintiff's favor against his own client, and he was bound to know of the absence of the plaintiff and of any counsel to represent her when he called the case up. However, the utmost good faith and honesty on the part of counsel cannot save the defendant from the penalty of having the judgment which he procured against himself declared to be an absolute nullity. The defendant himself was well aware that the plaintiff had instructed her counsel to discontinue the suit and of her intention not to prosecute it further, and he knew, when he employed counsel to file an answer and to obtain judgment in plaintiff's favor on his admission and confession, that the plaintiff's attorneys had withdrawn from her suit, if she intended to discontinue same. The contention is untenable and is without support in law or reason. The plaintiff had the absolute control over her case and the unquestioned legal right either to prosecute or to discontinue it at her will and pleasure.. She was not bound to take an appeal even if she had been informed of the judgment in time to have done so within the legal delay. Moreover, the nullity of the judgment complained of was not one of form appearing upon the face of the papers, but one that appertains to the merits of the case, and would not have been disclosed by the record on an appeal. The action of nullity "as provided by Code Prac. art. 607, is independent of the remedy by appeal," and while it is not a substitute for an appeal, "its purpose is to furnish relief against fraud which has operated in the obtention of a judgment, which makes no appearance in the recoru, and for which an appeal would afford no remedy." State ex rel. Pelletier v. Sommerville, 112 La. 1091, 36 South. 864. [5] Article 607, Code of Practice, provides that "A definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud or other ill practices on the part of the party in whose favor it was rendered." In the instant case the fraud and ill practices, it is true, were not on the part of the wife in whose favor ostensibly the judgment of divorce was rendered, but on the part of the husband by whose act and procurement and for whose benefit alone the said judgment was obtained. The instances enumerated in the article quoted supra are not ex (100 So.) The accident occurred at a street trative. The courts have discretionary power | mobiles. to determine what kinds of frauds or ill intersection in the city of New Orleans. practices strike a judgment with nullity. Lazarus v. McGuirk, 42 La. Ann. 194, 8 South. 253; State v. Sommerville, 112 La. 1100, 36 South. 864; O'Rourke v. Lawrence, 132 La. 710, 61 South. 764. Plaintiff sued for $15,620.44. Defendant reconvened for $15,066,50. Plaintiff pleaded prescription to the reconventional demand. Pending the issue defendant died, and his heirs were made parties. The trial was before a jury. The judge charged the prescription pleaded to the reconventional demand was well founded. The verdict rejected both demands, and judgment was entered accordingly. Plaintiff moved for a new trial, which was refused. He then appealed; defendants did not. Plaintiff's large claim for damages is unfounded. His injuries were not of a serious character nor of long duration. His principal injury was a sprained back, which confined him to his home for about a week. The other items of alleged damage are too remote and speculative to merit consideration. Plaintiff was driving in a northerly direction on South Pierce street. Defendant was driving in a westerly direction on Palmyra street. The cars met at the intersection of said streets. Each party charges the accident to the negligence of the other. The jury found that the fault lay with plaintiff. The district judge, by refusing a new trial, approved the verdict. Our examination of the record has not disclosed any reason for disturbing their findings. Plaintiff's principal witness was plaintiff himself. None of his other witnesses saw the accident or gave testimony of any value. There were nine people in defendant's car: Defendant, his wife, four daughters, a sonin-law, a niece, and a grandchild. This last, an infant, was held in its mother's lap. Defendant's wife, four daughters, and son-inlaw testified. Defendant was dead at the Appeal from Civil District Court, Parish time of the trial. The son-in-law, who was of Orleans, Hugh C. Cage, Judge. Action by Dr. Louis M. Thomason against John Garic. Judgment for defendant, and plaintiff appealed. Affirmed. S. A. Montgomery and Arthur H. Browne, both of New Orleans (J. D. Dresner, of New Orleans, of counsel), for appellant. driving the car, was the main defense witness. Defendant was well along in years, was in ill health, and was out for an airing with his adduced on defendant's behalf that his aufamily, facts corroborative of the testimony tomobile was being driven carefully and at a reasonable rate of speed. On the other hand, plaintiff, who is a physician, was hurrying to pay a professional call; he failed to slow By Division A, composed of O'NIELL, C. up on nearing the corner, and when he saw J., and ROGERS and BRUNOT, JJ. Edward Rightor, of New Orleans, for appellee. ROGERS, J. This is a damage suit resulting from a collision between two auto defendant's car approaching he increased his speed in order to pass in front of said car, thus bringing about the collision. Judgment affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |