#### VINSON v. PICOLO et al.

No. 17960.

Court of Appeal of Louisiana. Orleans.

Nov. 29, 1943.

*779Jas. G. Schillin, of New Orleans, for appellant Vincent C. Picolo.

Baldwin, Plaspel, Molony & Lang and Emile A. Wagner, Jr., all of New Orleans, for appellee.

WESTERFIELD, Judge.

This is an action in nullity in which Vincent C. Picolo seeks to have a judgment ,of the First City Court set aside insofar as it runs against him (the judgment condemned Picolo and his wife in solido) upon the ground of fraud.

On January 2nd, 1943, W. Coy Vinson filed a petition in the First City Court against Vincent C. Picolo and his wife, Mrs. Vincent C. Picolo, claiming $263 as damages to his automobile alleged to have been caused as the result of a collision with an automobile driven by Mrs. Picolo while on a community errand. Both defendants were served by citation delivered to Mrs. Picolo. Such service was, of course, effective as to Picolo. Code of Practice, Article 189. No appearance was made upon behalf of either Mrs. Picolo or her husband and, on January 18th, 1943, judgmenf by default was entered, and on the same day notice of judgment was served on Mrs. Picolo. The judgment was signed on January 25th, 1943. On February 8th, 1943, the present suit to annul the judgment was filed. Meanwhile garnishment having been issued to Nick S. Pahos, Picolo’s employer, a supplemental petition was filed by Picolo, in which a restraining order was prayed for and obtained and the judgment creditor and the Constable of the First City Court ordered to show cause on February 16th, 1943, why a preliminary injunction should not issue.

Defendant in the annulment suit filed exceptions of no right or cause of action and, at the same time, answered the original and supplemental petitions of plaintiff, denied the allegations of fraud contained therein, and asked for $150 as attorney’s fees “incurred in the defense of this cause”.

With the pleadings as thus made up the case came up for trial on its merits without the preliminary restraining order having been dissolved or a preliminary injunction issued. Apparently the question of in-junctive relief was referred to the merits of the controversy. On the trial upon the merits W. Coy Vinson, the plaintiff in the original suit, Vincent C. Picolo, the plaintiff in the annulment suit, and other witnesses were placed on the stand.

The trial resulted in a judgment dismissing the suit for injunction and Picolo has appealed. No allowance, however, was made for attorney’s fees and Vinson has answered the appeal seeking to have attorney’s fees awarded him.

The alleged fraud is said to consist in the false statement contained in Vinson’s petition to the effect that the car which caused the damage to Vinson’s automobile belonged to Picolo when, as a matter of fact, it was the property of his wife and that Vinson, in testifying to this effect on the stand, perjured himself, and also that Vinson alleged that Mrs. Picolo was on an errand in behalf of the community of acquets and gains at the time of the accident. It is further alleged that certain testimony given by Vinson, in confirmation of default, to the effect that Mrs. Picolo, *780at the time of the accident, had two children in the car with her, was insufficient to warrant Vinson assuming that the car was on a community errand.

Article 607 of the Code of Practice reads as follows: “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; as if he had obtained the same by bribing the judge or the witnesses, or by producing forged documents, or by denying having received the payment of a sum, the receipt of which the defendant had lost or could not find at the time, but has found since the rendering of the judgment.”

 This article has been liberally interpreted as appears by the following quotation from Succession of Gilmore, 157 La. 130, 102 So. 94, 95.

“It is true that said petition does not charge ‘fraud’ or the ill practices specifically enumerated in the article of the Code of Practice above cited. The remedy given by said article to annul judgments, however, is not restrictive. The courts of this state will not hesitate to afford relief against judgments, irrespective of any issue of inattention or neglect, when the circumstances under which the judgment is rendered show the deprivation of legal rights of the litigant who seeks relief, and when the enforcement of the judgment would be unconscientious and inequitable. Our courts will follow the general principles of equity jurisprudence applied by the equity courts of the other states of this country in actions of this character. Lazarus v. McGuirk, 42 La.Ann. 194, 200, 8 So. 253; City of New Orleans v. Le Bourgeois, 50 La.Ann. 591, 592, 23 So. 542.

> “Courts of equity will not permit one party to take advantages of and enjoy the gains of ignorance or mistake of law by the other, which he knew of and did not correct, especially when a confidential of fiduciary relation existed between them. Pomeroy, Equity Juris, vol. 2, pars. 847, 848, 849, 956”.

In Miller v. Miller, 156 La. 46, 100 So. 45, 46, we find the following: “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 pbtention of a judgment, which makes no appearance in the record, and for which an appeal would afford no remedy.’ State ex rel. Pelletier v. Sommerville, 112 La. 1091, 36 So. 864.”

In the case before us, however, we find no evidence of fraud. It is true that the plaintiff alleges that the automobile belonged to Picolo and that it was registered in his name and that, at the time of the accident, was being driven in the interest of the community. There is also another allegation in the alternative to the effect that if the car was not driven in the interest of the community at the time of the accident, then a judgment is asked only against Mrs. Picolo. We find nothing fraudulent in these allegations. Just what testimony was adduced in confirmation of default we do not know, since it is not in the record, but we do find a certificate of the judge that sufficient evidence was presented.

The question of whether the car belonged to Mrs. Picolo and whther it was being driven in the interest of the community at the time of the accident were determined in favor of Vinson upon “plaintiff making due proof of claim”.

The points raised by Picolo, as the basis of his attack upon the validity of the judgment, might have been successfully pleaded in defense of the original action or may have availed Picolo on appeal, but the action of nullity cannot be used as a substitute.

The claim for' attorney’s fees cannot be allowed. Edwards v. Wiseman, 198 La. 382, 399, 3 So.2d 661.

Attorney’s fees for the dissolution of an injunction can only be allowed when the writ .is dissolved on the face of the papers and not on the merits of the controversy. If attorney’s fees are allowable at all in connection with the dissolution of a temporary restraining order, which is doubtful, the restraining order issued in this case was not dissolved but referred to the merits. (Ibid.)

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

McCALEB, Justice

’(concurring).

I wholly concur in the conclusion reached in the main opinion; For my own part, I doubt the wisdom of permitting a defendant, who has allowed a default judgment to. be rendered against him, to pursue the *781remedy of nullity prescribed in Article 607 of the Code of Practice by attacking the' truthfulness of the allegations of the petition which was filed against him. And, while I am aware that the courts have given a most liberal interpretation to the Codal article respecting nullity so as to include within its purview cases where perjury has been committed and injustices have occurred, I know of no case where the courts have gone so far as to sanction the action of nullity based on the ground that the allegations of the petition on which the demand is founded are false and untrue. Petitions are, in most instances, prepared by counsel and, while the law requires that an affidavit of the plaintiff be made thereto, it is a well known fact that many allegations are made which are either incorrect or are not capable of being proved. But no one, I daresay, would have the temerity to suggest that charges made in a petition which cannot be sustained are fraudulent for the defendant has his day in court to combat the case alleged against him. Yet, if Picolo’s contention is correct in this case, the mere fact that Vinson swore to the allegations contained in the petition as being true when, as a matter of fact, he might not have been able to successfully sustain them, if Picolo had elected to defend the case in the first instance, subjects the judgment to this belated attack of nullity, notwithstanding that the judge of the lower court has issued his certificate stating that the evidence tendered in support of the default judgment was sufficient.

I cannot believe that Article 607 of the Code of Practice was ever intended to expand the remedy of nullity to this length. Fraud, as used therein, means, to my mind, fraud in procurement; the practice by one of the litigants of an artififce or some sort of deception upon the other. Here no such fraud, as contemplated by the Code of Practice, could have been perpetrated by Vinson because Picolo was served with the papers and was, therefore, well aware of the charges made by Vinson which he was summoned to defend.

Furthermore, it appears to me that the allegations of fraud contained in Pico-lo’s action of nullity are groundless. He charges that Vinson swore falsely (1) when he alleged that the offending automobile belonged to the community, and (2) when he asserted that Mrs. Picolo was engaged on a community errand at the time of the accident. It is shown by the evidence taken during the trial of the action of nullity that the automobile was purchased in Pico-lo’s name and, even if it had been purchased in his wife’s name, it would still, under our law, be presumed to belong to the community.

With respect to the charge of the petition that Mrs. Picolo was engaged on a community mission at the time of the accident, this was not strictly an allegation of fact but, rather, a conclusion of the .pleader. The question, as to whether Mrs. Picolo was acting for the community interest or not, was one for the court to decide upon the evidence presented at the trial. Surely, it was neither such an allegation which could be regarded as a false statement of fact for which Vinson could be condemned for false swearing nor one which would possibly deceive or defraud Picolo.

In addition, I do not think that this allegation is a necessary one in a suit brought against the husband by a person who has been injured through the negligent operation of community property by the wife. It seems to me that the rule to be invoked, in cases of this kind, is similar to that which pertains in suits ex delicto, brought by parties who have been injured by vehicles of others which are operated, at the time of the accidents, by the owners’ employees. In those matters, the plaintiff is required only to prove—(1) the ownership of the offending car by the defendant, (2) that the operator of the car was in the employ of the defendant, and (3) that the injury was received as the result of the employee’s negligence. Upon adducing such proof, plaintiff makes out a prima facie case of liability as it is to be presumed that the employee is acting within the course and scope of his employment. The question of whether the servant is engaged upon the duties assigned to him by his master is considered to be a matter. of special defense on the theory that the plaintiff is not in a position to present evidence of this fact, whereas, the defendant is fully able to do so. See May v. Yellow Cab Co., Inc., 164 La. 920, 114 So. 836; Mancuso v. Hurwitz-Mintz Furniture Co., La.App., 181 So. 814 and O’Sell v. Cassagne, La.App., 12 So.2d 51.

It strikes me that the same rule is applicable in cases involving accidents, which are due to the negligence of a married woman while operating an automobile *782belonging to the community. The fact that the offending vehicle is community property and is being operated by the wife, who is a member of the partnership, seems to me to be sufficient to authorize the finding that she was using it for the benefit of the community, in the absence of evidence to the contrary, and to cast upon the defendant husband the duty of going forward by tendering evidence to establish that the wife was not engaged upon such a mission at the time of the accident. Surely, the injured party (like the plaintiff in case of master and servant) is without means to present evidence concerning the nature of the wife’s mission — whereas the defendant husband is fully acquainted with the use and can readily produce proof to establish his contention. Hence, if a presumption arose (from the fact that Mrs. Picolo was operating an automobile belonging to the community at the time of the accident) that she was engaged on a community mission, the conclusion of fact alleged by Vinson in his petition that she was engaged on such a mission can be regarded as surplusage as it was not necessary in order to support his cause of action.

For these reasons, I respectfully concur in the decree.

JANVIER, Justice.

I concur in all that both of my associates have said.