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Docket Number

No. 26912.

Attorney(S)

Alpha, Fisher Pegues, of Shreveport, and C.S. Hebert, of New Orleans, for relator.

Judges

ROGERS, J.

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Smart Summary

Case Summary: Jones v. Cunningham et al.; Same v. Cunningham. In re Jones. No. 26912 (La. Nov. 5, 1924)

Factual and Procedural Background

Relator, James W. Jones, Jr., is a judge of the District Court for the Eleventh Judicial District (Natchitoches and Red River parishes). Approximately six months before this opinion, in his private capacity he filed suit in that court against William T. Cunningham and three other defendants for damages for slander and libel. About four months later he filed a second suit in the same court, in his private capacity, against William T. Cunningham alone for damages for slander. Citations and certified copies of the petitions were served on the defendants, and the statutory 15-day period to answer elapsed without any answer or other pleading being filed.

Because of his personal interest in the suits, relator recused himself and indorsed orders of recusation on the petitions (citing Act 40 of 1880). He then appointed Judge R. W. Oglesby of the Fifth judicial district to try the first suit (Act 185 of 1898). Judge Oglesby subsequently declined the appointment. After filing the second suit, relator appointed Judge E. P. Mills of the First judicial district to try both cases. Relator averred that Judge Mills had neither accepted nor declined the appointment and that, due to docket congestion in the First judicial district, Mills' services would likely be unavailable for months and probably not within the present term. Relator made no other appointment of a judge ad hoc.

Alleging both petitions were ripe for preliminary default, relator, in his individual capacity and through counsel, appeared in the Eleventh judicial district court before relator in his judicial capacity and moved for preliminary defaults. While the motions were pending, relator, acting in his judicial capacity and to resolve doubts in favor of his opponents, denied the motions. Relator then sought a writ of mandamus from the Louisiana Supreme Court directing himself, as judge, to permit the entry of the requested defaults. The Supreme Court refused the writ.

Legal Issues Presented

Whether the granting of a preliminary default is a ministerial act or a judicial act.
Whether relator, having entered orders of recusation in the suits in which he is a party, retained authority to grant preliminary defaults in those suits.

Arguments of the Parties

Relator's Arguments

Relator asserted that the granting of a preliminary default is a ministerial act rather than a judicial one.
Because it is, in his view, ministerial, relator contended that he, even as a judge who had recused himself, could perform that act and therefore was entitled to have the defaults entered.
Relator also sought to resolve doubts in favor of his opponents and against himself; he initially refused the motions in his official capacity but later claimed that refusal was error and applied for mandamus to compel entry of the defaults.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Adler v. Wolff et al., 36 La. Ann. at page 175	That an entry on the minutes (the records of the court) showing that a default has been taken is essential.	The court relied on this precedent to emphasize that a default is "obtained" by moving for it in court and that an entry on the court minutes is necessary to constitute the default.
State v. Woods, 124 La. 738, 50 So. 671	That when recusation orders are entered, the recused judge's functions are confined to selecting a judge ad hoc and to reviewing and revising the order appointing the judge ad hoc.	The court applied this principle to conclude that relator, having recused himself, was stripped of other authority and power—including the power to grant a preliminary default in the cases in which he was a party.

Court's Reasoning and Analysis

The court first noted that it was unnecessary for the purposes of this application to decide the contested question whether entry of a default is ministerial or judicial. It then examined Code of Practice article 311, which states that a judgment by default "may be obtained by moving for it in court, but it consists merely in a statement on the records of the court, showing that the defendant has failed to appear." The court interpreted "records of the court" to mean the court minutes and cited Adler v. Wolff et al. to support the proposition that an entry on the minutes showing that default has been taken is essential.

The court reasoned that a default is "obtained" by moving for it in court—that is, by appearing before a judge authorized to preside over the tribunal and empowered to hear and determine the issues between the parties. Because relator had entered orders of recusation in the two cases, his functions were limited to selecting a judge ad hoc and to reviewing and revising the appointment order (citing State v. Woods). Consequently, relator lacked authority or power to perform other functions of the court, including granting a preliminary default, which the court characterized as one of the procedural steps provided by law in hearing and determining causes between litigants.

Based on these legal principles and the factual posture that relator had recused himself and had not secured an available judge ad hoc to try the cases, the court concluded that relator did not have the requisite authority to have the defaults entered and therefore declined to issue the requested writ of mandamus.

Holding and Implications

Holding: The writ of mandamus applied for by relator was refused.

Implications: The direct effect is that relator, having entered orders of recusation in the cases in which he is a party, may not have preliminary defaults entered by himself in his capacity as judge because he lacks the authority to perform such steps in causes from which he is recused. The opinion does not discuss any broader implications beyond its application to the facts presented.

Opinion delivered by ROGERS, J.; LAND, J., concurred in the decree.

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JONES v. CUNNINGHAM ET AL. SAME

ROGERS, J.

Relator is the judge of the district court for the Eleventh judicial district, composed of the parishes of Natchitoches and Red River.

Some six months ago he filed suit in said court against William T. Cunningham and three other defendants for damages for slander and libel; and some four months later he filed suit in the same court against William T. Cunningham alone for damages for slander.

Citations were issued and, together with certified copies of the petitions, were promptly served on all the defendants, and, although the delay of 15 days from said service provided by law for answering has long since elapsed, none of the defendants has filed an answer or other pleading.

At the time the said suits were entered, relator, because of his personal interest therein, recused himself (Act 40 of 1880), indorsing the order of recusation on each of the petitions filed. Relator appointed Judge R.W. Oglesby, of the Fifth judicial district court, to try the first suit (Act 185 of 1898). Judge Oglesby, in the meantime, having been appointed by this court as a member of the Court of Appeals for the Second Circuit, was forced to decline said appointment, which he did in writing. Subsequently, and after the filing of the second suit, relator appointed Judge E.P. Mills, one of the judges of the First judicial district, to try both cases.

In his application to this court, relator avers that Judge Mills has neither accepted nor declined said appointment, but that, owing to the congestion of the docket of the First judicial district court, it will be impossible to secure the services of Judge Mills for months, and probably not within the present term of court. Relator has not made any other appointment of a judge ad hoc to try said cases.

In this situation, and alleging that both of said petitions are ripe for preliminary default, relator, in his individual capacity, acting through his attorneys, appeared in the Eleventh judicial district court before relator in his judicial capacity, and moved for preliminary defaults.

Relator, realizing "that he was in a delicate situation, while said two motions for preliminary default were pending before him," and desiring to resolve all doubts in favor of his opponents and against himself, denied, in his official capacity, the motions which had been made on his behalf in his individual capacity.

Notwithstanding his action in refusing to grant the motions for preliminary defaults, relator avers that he was in error in so acting, because the granting of a preliminary default is a ministerial, and not a judicial, function, which could be performed by himself, as well as by another district judge, acting herein as judge ad hoc, and hence has applied, to this court for a writ of mandamus against himself, as judge, to permit the entry of said defaults.

I do not think it is necessary, for the purposes of this application, to decide whether the entry of a default is a ministerial or a judicial act.

The Code of Practice, art. 311, reads:

"Such judgment may be obtained by moving for it in court, but it consists merely in a statement on the records of the court, showing that the defendant has failed to appear." (Writer's italics.)

The "records of the court" referred to in the article are the minutes of the court; and an entry on the minutes of the court showing that default has been taken is essential. Adler v. Wolff et al., 36 La. Ann. at page 175. The default is "obtained" by "moving for it in court"; that is to say, by appearing in court before a judge authorized to preside over the tribunal, and empowered to hear and determine the issues between the parties. Quoad the two cases referred to in his application, relator is clearly without such authority or power. When the orders of recusation were entered, relator's functions became confined solely to the selection of a judge ad hoc to try the cases, and to review and revise the order appointing the judge ad hoc. State v. Woods, 124 La. 738, 50 So. 671. He was stripped of all other authority and power, including the power to grant a preliminary default, which is one of the steps provided by law in the hearing and determining of causes between litigants.

In my opinion, therefore, the writ applied for should be refused.

Writ refused, for the reasons assigned.

LAND, J., concurs in decree.

JONES v. CUNNINGHAM