Pelican Homestead & Savings Ass'n v. Elms

PLOTKIN, Judge, concurring: The plaintiffs raise the issue of whether the default judgment is a nullity. The facts alleged by plaintiffs, if true, may support an action in nullity for ill practices. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983), La.C.C.P. art. 2004. However, if the default judgment is a nullity it is a relative nullity. Thus, the grounds must be asserted in a direct action, not collaterally on an appeal of an exception of prematurity. The record reflects that a petition to annul the judgment was filed by the plaintiff. There is no indication that the petition has been ruled upon by the trial court. Therefore, the issue is not before this court.