Stevenson v. Whitney

33 La. Ann. 655 | La. | 1881

The opinion of ihe Court was delivered by

Fenner, J.

This is an action for nullity of a judgment, coupled with a demand for an injunction to restrain its execution.

We quote from the petition the sole ground of nullity alleged, viz: “ That under and by virtue of the provisions of the constitution of 1868 and of the articles 162 and 163 of the Code of Practice, the said judgment, as rendered, is an absolute nullity for the reason that said judgment was not rendered by a judge having jurisdiction over the place where your petitioner has his domicil and place of residence.”

Plaintiff lived in the parish of Iberville. The suit, in which the judgment attacked was rendered, was brought in the parish of Tensas. Citation was sent to the parish of Iberville and domiciliary service was there made on plaintiff. Upon the sufficiency of this citation we are not called on to pass, because, from the evidence presented in this record, we are not able to say what further proceedings took place in the suit and whether any deficiency of citation may not have been cured by appearance and plea. The records of the suit is not offered in evidence. The note of evidence shows that plaintiff in injunction offered in evidence only the petitions, citations and returns thereon, judgment and writ of ñ. fa., etc. Nothing indicates that these constitute the entire record. A reference to the judgment so offered shows that it was not rendered on default. The judgment reads: “This case having been called and tried, and after hearing the pleadings and evidence, and the law and evidence being in favor of the plaintiff, it is, by reason thereof, ordered, adjudged, etc.”

"Without a violation of all rules of proceeding, such a judgment could not have been entered in absence of appearance and plea, and the presumption omnia rite acta, compels us to assume that such existed. Under these circumstances the ground of nullity set up by plaintiff cannot be sustained. Want of jurisdiction ratione personae, resulting from citation before a judge other than that of defendant’s domicil, is waived by appearance and plea other than by exception declining the jurisdiction, and, when so waived, does not affect the validity of the judgment. C. P. 93. The contrary jurisprudence established for a time by the Court presided over by Chief Justice Ludeling, was not, in our opinion, well founded, and has been reversed by our immediate predecessors in several decisions.

Phipps vs. Snodgrass, 31 An. 88; also 29 An. 194; 30 An. 595.

The reasoning of the Court in the case of Phipps vs. Snodgrass is unanswerable, and we fully approve the rectification, there made, of our jurisprudence. This disposes of the action of nullity and of the injunction founded thereon.

The other objections-to the proceedings urged in brief of counsel cannot, as a matter of course, be considered in the action of nullity, not having been pleaded. Indeed, we infer they are urged solely in opposition to the reconventional demand of the defendant. This, however, is for less than one thousand dollars, and we have no jurisdiction to revise the judgment rendered thereon.

Dean vs. Clark, 5 An. 105.

Tardos vs. Toulon, 14 An. 429.

The converse rule that, where the principal demand is unappealable and the reconventional demand is appealable, the latter only can be revised here, rests on the same principle, and has been frequently recognized. Vincent vs. Schweitzer, 17 An. 199; 3 Rob. 387; 10 id. 438; 11 id. 12; 15 An. 521.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from upon the demand of plaintiff against defendant be affirmed, and that the appeal from the judgment on the reconventional demand be dismissed, appellant to pay costs of this appeal.

Rehearing refused.