Haggerty v. PhillipsHaggerty v. Phillips
- Reporters:
- Before:
- Howell
This suit is brоught against certain parties alleged to be purchasers of nineteen lots of ground in New Orleans, sold under executory process in the suit of R. M. Denman v. J. A. Haggerty, No. 18,509, on the docket of the Third District Court of New Orleans, at which sale the said lots were adjudicated to Denman, the plaintiff in said suit, and by him subsequently sold to the defendants herein. The рlaintiff, Haggerty, alleges that all the proceedings in sаid suit are absolutely null and void for various reasons set out in his petition, and, without making Denman a party to this suit, asks that the said proceedings and adjudicatipp be declared null, and he recognized as the *730lawful owner of the said lots, and quieted in tlxe possession thereof. The .dеfendants excepted, that plaintiff cannot maintain this action against them, because it is one to annul thе proceedings and judgment in a suit to which they were not parties, and the parties to which are not made рarties to this.
The exceptions were maintained and the plaintiff has appealed.
Articles 604-613, C. P., limit the action of nullity to the parties to the judgment and the court that rendered it. Clark v. Christine, 12 L. 394 ; Twichel v. Bordelon, 9 R. 191. But plaintiff’s counsel contend that this is reаlly a petitory action, and that the nullity is merely an incident, and being absolute, may be collaterally declared. It is true that the proceedings assailed are аlleged in the petition to be absolutely null ; but when the grounds of their nullity are set forth, they are found to be relative. Hе alleges that the Third District Court of New Orleans was ousted оf jurisdiction of the matter by certain military orders then in’force, but does not describe them; that ho was a loyal сitizen and entitled to the benefit of said orders1‘; that he had not, as alleged, permanently left the State; and thе appointment of a curator ad hbo was illegal; that if hе had been absent, an attorney for the absent defendant, and not a curator ad hoe should have been apрointed; that the allegation of his absence should hаve been proven by authentic evidence; that the curator ad hoc failed to per-iorrn his duties and exceеded his authority; that the property was sold at an inoрportune time and for one-third of its value; that no legаl notices were given to petitioner or any onе legally authorized to represent him, and that said Denmаn without pursuing strictly the legal formalities has caused the sheriff illegally to adjudicate the said property to him, and that he and bis vendees, the defendants herein, are рossessors in bad faith, and are bound by the defects in their рretended titles.
It seems clear that in such an action, the parties to the proceedings sought to be аvoided, are necessary parties.
It is therefore ordered that the judgment appealed .rom be affirmed with costs.