43 La. Ann. 302 | La. | 1891
This is a suit to annul a judgment.
In a previous litigation, an attempt having been made to attack it collaterally, this court held that this could not be done and that it must have full force and effect until set aside in a direct action. Starns vs. Hadnot, 42 An. 368.
The plaintiffs and defendants are uterine half brothers and sisters.
The plaintiffs are the children by a first, and the defendants by a second marriage.
Their mother having died in 1876, the plaintiffs at the time claimed that there existed a community between her and her second husband, Lewis, during which property was acquired, which in part, at her death, vested in them.
They therefore brought suit against said half brothers and sisters, in partition of the property said to have accrued to their mother by virtue of that community.
They were met with the defence that there existed no community by express stipulation in the marriage contract between the parties.
To substantiate this averment' the marriage contract should have been produced, but it was not, because the original had been destroyed by fire when the court house of the parish of Rapides was burnt in 1864, and the defendants supplied the loss by introducing in evidence a. judgment rendered by the District Court of that parish reviving the'contract and declaring that it contained the stipulation, that no community would exist between the spouses.
The present action has for its object to annul that judgment.
The grounds of attack are:
That the court which rendered it, namely the District Court of Rapides, had no jurisdiction ratione personarum et m(iterice over the suit.
That the judgment was procured in a proceeding in the name of the wife without her knowledge by the husband who confessed the facts alleged.
In 1864 the court house of Rapides parish, in which the Recorder’s office, with all the archives belonging to it, was kept, was destroyed by fire.
In 1866 and in 1868 as also in 1869 provision was made by the Legislature to revive or reconstruct destroyed records, contracts,
The suit to revive the contract was brought in the early part of November, 1868, before the court of Rapides, the defendant acknowledging service and confessing on the 11th of November following.
On December 24, 1870, the District Court for the parish of Rapides rendered judgment reviving the marriage contract.
Mrs. Lewis died in 1876.
After the institution of the suit to revive the contract the Legislature passed Act 25, p. 70, extra session of 1870.
The first section of that act declares, by amending the eighth section of the Act of 1869 creating the parish of Grant, that it shall be-the duty of the clerks of the District Court of the parish of Rapides- and Winn, immediately after the passage of the act, to transmit to the clerk of the District Court for the parish of Grant, all petitions, answers, documents and papers appertaining to suits wherein the defendant or defendants reside within the parish of Grant, and also-all petitions, orders, bonds and other papers relating to successions,if the administrators thereof reside and the property of such sucees - sion is situated in the parish of Grant, and also all papers and matters relating to the tutorship of minors therein when they or a majority of them reside in the parish of Grant, copies of all such suits or papers to be retained in the office of the clerk of the District Courts of. the parishes of Rapides and Winn and the original sent to the parish of Grant. “ All suits, whether judgment be rendered therein or not, are to be transmitted in accordance with this act.”
Section 4 of the same act provides: “That all actions taken and judgments rendered therein after the passage of this act, shall be null and void and consent shall not take away the jurisdiction of the court to try such causes contrary to this act, except when there is an equal number of the heirs and value of the property in each parish, as the case may be, then it shall be settled by the court if the heirs disagree.”
The defences to the suit in nullity are that the act of 1870 did not repeal the previous ones of 1866, 1868 and 1869; that the court of Rapides in 1870, when it rendered the judgment attacked, had jurisdiction of the matter which was not a suit, that the right of action to annul is barred by prescription.
In the absence of any constitutional prohibition the Legislature
The jurisdiction of courts fluctuates with the legislative will whenever the organic law is not thereby contravened.
In 1881 in the case of Calhoun vs. Levy, 33 An. 1290, in which the •effects of this very Act of 1870 was inquired into, the present court ■said:
“ The Act of 1870 removed all causes, suits and succession falling under the conditions mentioned therein from the parish of Rapides, divested the court of the parish of all further jurisdiction and control ever them and substituted the parish of Grant as to such jurisdiction .and control in the stead of the parish of Rapides, vesting the former with all the jurisdiction, authority and judicial power which before the passage of that act had attached to the Rapides court.”
This conclusion is grounded on previous ruling on a germane case. Hammett vs. Sprowl, 31 An. 325.
Attempts had been made in those cases to obtain judgments to revive judgments in order to prevent their extinction by prescription.
The word suits used in the Act of 1870 applied to all judicial proceedings before the District Court of Rapides, whether terminated, or not, by judgment, whenever the defendant, or main parties concerned therein, resided in Grant parish.
The requirement of the transfer from the former to the latter court, was so mandatory that the Legislature expressly declared that the jurisdiction would pass and be exercised, the consent of parties to the contrary notwithstanding.
This was a legislation concerning public order, dictated by public policy, from which individuals, by their private or other conventions, were prohibited from derogating.
There is no dispute that at the time of the institution of the suit in 1868, and of its decision in 1870, after the passage of th.e prohibi
The consequence is that the District Court of the parish of Rapides having been divested, and that for the parish of Grant having been clothed, exclusively, with jurisdiction over the proceeding to revive the marriage contract, the judgment rendered is a nullity, and must be so declared.
The defence that this proceeding to revive the contract was not a suit, and therefore did not come within the legislative purview, is inconsiderate, and entitled to no further notice than a reference to Article-96 of the O. P., which declared in substance that a suit is a judicial demand to obtain a decision on a right asserted. Particularly were such proceedings a suit, as the law required a rendition of a judgment as the only evidence to establish a fact, or right asserted. The words suit, process, and cause are almost synonymous.
The other defence of prescription can not stand. We have been referred to no law justifying the plea. We are dispensed from inquiring into the second ground alleged in nullity. The judgment was absolute nullity on its face; as much so as would be a judgment by a justice of the peace passing on title to real estate in a petitory action. It had no bottom to stand upon, and was not such that any right could be acquired under.
, There is no evidence that the plaintiff’s mother has acquiesced in that judgment so as to bar them from setting up its nullity.
The finding of the District Court amending the judgment assailed is correct, and must .remain undisturbed.
Judgment affirmed.
