Kemp v. Fernandez

LEMMON, Justice, concurring. I would treat the petition for injunction as a petition for nullity of judgment, since that pleading asserted that plaintiff had wrongfully obtained a judgment for unearned discount of approximately $15,000. Under that approach defendant arguably was seeking to annul the judgment as one obtained by ill practice. C.C.P. art. 2004. However, defendant was apparently present in court when the matter was heard in December, 1975 (allegedly in the “form of a confirmation”), and an action for nullity had to be brought within one year of the time defendant discovered or should have discovered the ill practice. Thus the March 14, 1977 pleading was not filed timely to serve as a petition to annul the December, 1975 judgment.