Wheeler v. Britton

On the Merits. PROVOSTY, J. [2] Plaintiff obtained a judgment of separation from bed and board which became final in this court, by the refusal of a rehearing, on December 15, 1913. A writ of error to the Supreme Court of the United States was granted by the Chief Justice of this court from that judgment, but without supersedeas; and the Supreme Court of the United States dismissed the writ for want of jurisdiction. One year after the refusal of the rehearing in this court, but less than one year after the dismissal of the writ of error, plaintiff instituted the present suit for a final divorce. Article 139, C. C., provides that, except in certain specified cases, of which the present is not one, no divorce shall be granted— “unless a judgment of separation from bed and board shall have been rendered between the parties, and one year shall have expired from the date of the judgment of separation from bed and board, and no reconciliation shall have taken place.” Question arises whether this delay of one year began to run in this case from the date of the refusal of the rehearing in this court or from the date of the dismissal of the writ of error by the Supreme Court of the United States. In Hill v. Hill, 114 La. 117 , 38 South. 77 , this court held that the said article of the Code contemplates a judgment final and ex-ecutory, and that a judgment from which a suspensive appeal has been taken is not of that character. The question in the present case is as to whether a writ of error without supersedeas deprives a judgment of the highest court of a state of its final character. Whatever might be the effect of such a writ in a case in which the Supreme Court of the United States has jurisdiction, we are clear that in a case where that court has no jurisdiction the finality of the judgment is not affected; necessarily so, since there is no order of supersedeas, and no jurisdiction to review. But it is argued that the intention of the statute is that the parties should have one year for reflection after the litigation between them has terminated, terminated in the sense of the contest in the courts having come to an end, and that this does not happen so long as the litigation is being, in fact, prosecuted, though, by reason of the absence of jurisdiction, not legally so. We will not say that this argument has not a good deal of force; but the statute merely *981 says that the delay shall run from the date the judgment becomes final; and, in a case wherein a supersedeas has not been, in fact,: granted, the judgment of the Supreme Court of a state, when not subject to review, unquestionably becomes final from the date a rehearing is refused. [3] Again, it is argued that the delay should run only from the date the decree of this court is recorded in the lower court, because a judgment of this court cannot be executed until so recorded. Thomas v. Goodwin, 120 La. 504 , 45 South. 406 . The answer is that the question before us is not as to when the said judgment could be executed, but as to when it became final. [4] The citation of the defendant is said to have been defective, in that it was' not posted at the courthouse door. The citation in this case was addressed as follows: “To Miza M. Britton, Wife of Augustin B. Wheeler, through Delvaille Théard, Curator ad Hoc.” And it was served on the curator ad hoc. We are referred to no law requiring such a citation to be posted at the courthouse door, and know of none. The manner of citation in the present case was the same as in the original suit, where it was held to have been regular. Wheeler v. Britton, 134 La. 63 , 63 South. 624 . [5] The curator ad hoc complains that, he having been engaged in the trial of another case in another court when the case- was called up for trial on its first assignment, the reassignment should, under the rules of court, have been for a day two weeks hence, and not for the next day, as was done. No suggestion is made of any harm having come to defendant from this disregard of the rules, if disregard there was, and hence no good ground is shown for setting aside the judgment. Judgment affirmed, at defendant’s cost.