On Rehearing.
BREAUX, C. J.The Attorney General and his assistant filed an application for a rehearing.
*99The grounds are: That the attach upon the judgment in the action in nullity has been finally disposed of; that no attack whatever is now directed against that judgment; that a judgment rendered by a competent court, in an action for its nullity, is res judicata and a bar to a writ of certiorari in the Supreme Court to set aside the forfeiture.
That relator has no right to proceed via certiorari.
The respondent judge informs us that, on the 24th day of February, 1911, he rendered judgment denying the relief prayed for, refusing to set aside the judgment of forfeiture.
In the application for certiorari, relator attacks the forfeiture of a bond only; asks that it be set aside. Not the least reference is made to the judgment in nullity.
The petition for certiorari ignores entirely the judgment pronounced in the action for its nullity, and through that writ relator seeks to obtain a judgment as if the question had not previously been litigated to a finality.
Relator was plaintiff in a suit to set aside the judgment.
He cannot be heard to urge again the same grounds in other proceedings.
The present case is more favorable to the respondent than the case cited in 35 La. 'Ann. 214 (State ex rel. Marrero v. Judge, 35 La. Ann. 214), was to the respondent, in which the court held that the writ of certiorari will not issue when relator has brought an action in nullity.
Here the case is even stronger, for not only relator has heretofore proceeded in an action in nullity to annul the judgment, but a judgment has actually been rendered, which has become final and which is not before us for review.
Relator’s contention at this point is that' the decision in 35- La. Ann. 214 has been overruled by the decision rendered in State ex rel. Waller v. Justice of the Peace, 47 La-Ann. 27, 16 South. 565.
The facts in this case are not similar to those in the pending case.
In the last-cited case, the court held that if it appeared that the magistrate had rendered a judgment against relator, without giving him a hearing and without jurisdiction over the person of the defendant, who did not appear and answer, the judgment thus rendered will be annulled and avoided.
That being the state of facts, there was no res judicata, for no judgment can acquire the force of res judicata, rendered by a court which had no jurisdiction.
As the judgment was an absolute nullity, it was easily subject to collateral attack.
It was different in the pending case; the court had jurisdiction.
Learned counsel for relator in his .brief states that he was under the impression that the judge of the district court, answering relator’s demand in answer to the rule nisi, had not invoked as res judicata the proceedings and judgment of forfeiture of the bond.
He added, however, that the answer was not before him at the time that he wrote.
The trial judge does specially refer to the judgment signed by him in open court, on the 24th day of February, 1911, and states that it finally disposed of the issues and points to the record upon the subject.
The judgment on the forfeited bond, to which learned counsel refers, was rendered in February, 1910. This is the judgment to which the learned judge of the district court referred.
A writ timely taken would have brought up the issues for review in matter of the judgment in nullity.
The remedy would have been adequate.
There was another remedy, and it was through that remedy that the relief should have been sought.
The last judgment, now final, i. e., the *101judgment dated February, 1910, embraced all the issues. They were merged in the action in nullity, and when plaintiff’s demand was rejected in that case, whatever remedy he had was in that case.
The judgment cannot be left standing as res 'judicata; and the court go behind it and take up the judgment of forfeiture and pass upon the questions presented, and, if they should be found as heretofore, hold that the forfeiture itself is a nullity, while the judgment in the action in nullity remained as it was.
The relator was not entitled to two remedies, one via certiorari, and the other an action in nullity. He was entitled to one or the other, but not to both remedies.
One against whom a judgment has been rendered cannot call a prior judgment into activity and with authority contend that the prior judgment should be reviewed, and not the last, although it covers all the issues to the date that it was rendered.
It is decreed that the judgment heretofore handed down by this court in this case be annulled, avoided, and reversed. It is ordered, adjudged, and decreed that the rule nisi issued in the case be recalled and discharged, and that relator’s demand be denied and rejected at relator’s costs.
See dissenting opinion of PROVOSTY, J., 55 South. 725.