(dissenting).
I concede that the term “res judicata” is not an appropriate title for the plea of compromise, which the defendant filed in bar of this suit. The misnomer comes, perhaps, from the fact that article 3078 of the Civil Code declares that a transaction — meaning a compromise agreement — has the force or effect between the parties “equal to the authority of things adjudged.” But that is a matter of no importance. The defendant’s plea, which the district court sustained, was that, by the written agreement of compromise, dated the 30th of July, 1032, all oi; the differences, claims, and counterclaims, arising out of the contract between the Midland Construction Company and the defendant, R. B. Tyler Company, were settled to the mutual satisfaction of the parties; and that the matters complained of by the plaintiff in this suit, as successor to the rights of the Midland Construction Company, were settled and foreclosed by the compromise settlement.
The point which seems to be overlooked in the prevailing opinion in this ease is that the plaintiff is not attacking the compromise settlement, or seeking to set it aside, or claiming any rights under the compromise settlement, but is ignoring the settlement, and is claiming under the original contract between the R. B. Tyler Company and the Midland Construction Company, as if no settlement between the parties to that contract was ever had.
According to the very language of the Civil Code, a compromise agreement, when reduced to writing, is not subject to collateral attack, and in fact cannot be set aside by either of the parties, even by a direct action, except on allegation and proof of fraud or error of fact. Rev. Civ. Code, art. 3078; Russ v. Union Cotton Oil Co., 113 La. 196, 36 So. 937; Massey v. W. R. Pickering Lumber Co., 136 La. 688, 67 So. 552; Oglesby v. Attrill, 105 U. S. 605, 26 L. Ed. 1186. As the art&le of the Code says of compromise settlements: “They can not be attacked on account of any error in law of any lesion. But an error in calculation may always be corrected.” There is no error of calculation or any other kind of error pleaded in this ease.
I respectfully submit, therefore, that the district judge was right in dismissing this suit on the exception founded upon the compromise settlement, reserving to the plaintiff the right to sue upon any claim that the plaintiff might have by virtue of the compromise settlement, or to bring a direct action to set aside the compromise settlement.