The impression that I have of this case is that it is merely a suit for a decree of separation of property, or dissolution of the matrimonial *Page 600 community. The plaintiff's allegation that her husband had obtained a judgment of divorce in Texas, and that the judgment was null because rendered by a court that did not have jurisdiction and without citation, was an appropriate allegation, because, if the judgment of divorce is valid, the matrimonial community is already dissolved, and the plaintiff therefore has no right of action — and in fact there is no need for an action — for separation of property or dissolution of the community.
I concede that the plaintiff in this suit might have set forth a right of action, for a separation of property, without alleging that her husband had obtained a judgment of divorce in Texas; but, if in fact such a judgment was rendered, the plaintiff was justified in anticipating that the judgment of divorce would be set up as a plea in bar of her demand for a separation of property. She was right, therefore, in pleading the nullity of the judgment of divorce and in making the allegations necessary to sustain the plea in her original petition, if in fact the judgment is null.
Of course, a Louisiana court has not jurisdiction to annul a judgment of divorce rendered by a Texas court, if the Texas court had jurisdiction to render the judgment and if the party against whom it was rendered was cited according to the laws of Texas, or appeared in the Texas court in defense of the suit. But the plaintiff in this case is not suing to annul the judgment of divorce rendered by the Texas court. She is merely alleging and praying that the judgment of divorce should be decreed null ab initio because, as she alleges, it was rendered by a *Page 601 court that did not have jurisdiction, and in a proceeding in which she was not cited, and had no opportunity to be heard. Such a judgment is absolutely null; and the nullity may be invoked successfully in any court of justice, by any one having a substantial interest in the matter. Haddock v. Haddock,201 U.S. 562, 26 S. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1; Evans v. Evans,166 La. 145, 116 So. 831.
I concur in the overruling of the defendant's exception to the jurisdiction ratione personæ, in this case, because the plaintiff alleged that the defendant was then residing in New Orleans, and he offered no evidence to support his exception to the jurisdiction of the court.
I concur in the decree overruling the defendant's plea of prescription, but not in the reason given for overruling the plea — that the judge did not have jurisdiction to decide the question of prescription. The reason why the plea of prescription is not applicable to this case is stated in article 606 of the Code of Practice, and is repeated in article 612, viz.: "The nullity of a judgment rendered against a party without his having been cited, or by an incompetent judge, * * * may be demanded at any time," etc.
But I respectfully submit that it will be futile to remand this case to the civil district court for further proceedings if this court adheres to the decree sustaining the defendant's exception to the jurisdiction of the court ratione materiæ, "so far as it applies to plaintiff's demand for the nullity of the judgment of divorce," and if we reject her demand to that extent. *Page 602