Slocomb v. de Lizardi

Ludeling, C. J.

A judgment was rendered in this cause at the last term of this Court, by our predecessors, maintaining the defendant’s plea of res judicata.

Haying granted a new hearing, our first duty is to examine whether or not this exception is well founded.

The plaintiff seeks to recover from the defendant eight thousand dollars, with eight per cent, per annum interest on $4000 thereof from the eleventh of April, and on $4000 thereof from the eighteenth of April, 1801, being the amount of two promissory notes drawn and endorsed by Hugh M. Keary and endorsed subsequently by Juan Y. de Egana, upon the ground that these endorsements were made by the commercial firm of J. Y. de . Egana, and that the defendant was, at the time they were made, a general partner in said firm.

The defendant denied all the allegations in plaintiff’s petition, and especially that there ever existed between him and Egana any partnership, as alleged by the plaintiff. Subsequently he filed the exception of res judicata, and to support it, he pleaded the j udgment of the Second District Court of New Orleans rendered on the eleventh January, 1804, in the matter of the succession of Juan Y. de Egana.

It is true, as stated by the counsel for defendant, that the authority of the thing adjudged is not a mere technicality of the law, but it is a *356principle of jurisprudence which is founded in tlie interest of society. It rests upon tlie broad and necessary doctrine that the disputes of men must, at some time, bave an end, and it is, therefore, favored by the law.

But in order to justify courts of justice to reject a demand as contrary to the authority of a thing adjudged, a legal verity,- it is necessary that the thing demanded should be the same as in the first suit, that the demand should be founded on the same cause of action, and that the contest should between the same parties, acting in the same qualities. Thus, identity of the things demanded, identity of the causes of action, and identity of the parties and of their qualities are the conditions upon which alone the legal presumption is established in favor of the thing adjudged. C. C. arts. 22G4, 2265; Marcadó, vol. 5, p. 156.

What, then, was the thing demanded in the suit in which the judg-mont of the eleventh of January; 1864, was rendered? As between Caballero, the executor, and Lizardi, the liquidator, it was to make the latter return to the former the property of the succession of Egana, in the event that the court should decide that it had been impropierly delivered to him. On the eleventh of April, 1863, in consequence of proceedings by creditors of the succession of Egana against him, the executor filed a petition calling on the liquidator to file an account of his administration. The liquidator was ordered to file his account, which he did on the 30t.h of May, 1863. The executor opposed this account, prayed that it be rejected, and that, in the event that the court should decide that the executor had unlawfully turned over to the liquidator the money and property of the succession, that the liquidator should be ordered to return them to him. It is the prayer which indicates the thing demanded. 16 La. 44; 1 R. 109.

The prayers of the oppositions filed by the creditors do not show that Lizardi was sought to be made liable as a general partner.

But we deem it unnecessary to examine the oppositions, of the creditors further, for they certainly did not represent any body but themselves. And if we admit that the executor did represent, in those proceedings, all the creditors, we have seen that the thing demanded in that suit was not to make Lizardi responsible for the debts of the firm of J. Y. do Egana, as a general partner.

The demand must be founded on the same cause of action.

What is the cause of an action ? It is the immediate foundation of the right which one claims to exorcise. It is the immediate basis of the demand — and hence wo must guard against confounding the cause of action, cither with the various circumstances which constitute the mediate bases, or simple means which produce this last cause, or with the right itself, which is the object of the demand.

The cause of action in this suit is the alleged endorsement of two ■ promissory notes by Lizardi, as a member of the commercial firm of J. Y, de Egana,

*357The cause of action between Caballero and Lizardi was the wrongful possession and unlawful administration of the property of the succession of Egana by Lizardi.

It is true that some of the creditors charged, in their oppositions, that Lizardi was a general partner, to show fraud and complicity between him and the executor; bub this was not, nay, it is difficult to conceive how it could have been, the immediate cause of the action between the executor, creditors and liquidator.

Marcadé says: “ II ne faut pas eonfondre la cause avec les éléments qui viennent produire ou justifier cette cause. Sans doute, il y aura lii des principes du droit demandé, et des lors des bases de l’action par laquelle on reclame ce droit; mais' ce sont des bases éloignées et mediates, des causes de la cause, que la loi n’aurait pas pus prendre ici en considération, sans éterniser les procés et depouiller de toute efficacité les décissions judiciares. II n’y a pas a se préoccupcr de ces bases éloignés, et la caúse me se trouve que dans la base derniére, dans le principe immédiatemont générateur que les Romains appelaient fort exactement causam proximam aetionis.”' .* * Yol. 5, p. 165. “La régle est done de ne cousidórer ici que la báse, .immediate. Mais Mens entendre, dés la que cette base immédiate n’est pas la méme dans les deux demandes, il n’y a plus chose jugée, et la demande nouvelle est recevable.” Mercadé, vol. 5, p. 160.' - -

The demand must be between the same parties, and formed by them, against each other in the same quality.

Lizardi was sued in the first suit in his fiduciary capacity as liquidator ; in this cause, he is sued personally as a general partner of a commercial firm.

In the first case he was proceeded against by Caballero, executor of Egana; now lie is proceeded against by a creditor of the firm.

But it is said that Caballero, executor, represented the creditors, and that the homologation of his account and tableau bars all further inquiries as to the matters included in the account.. ..This is true, with some limitations. The effect of such a decree protects the executor of administrator in making the payments ordered or approved, and from liability for his gestión so far as that is approved ; and it settles the claims of creditors against the succession as to the funds distributed, unless there be other creditors who \vere not placed upon the tableau. 4 An. 450; C. C. art. 1176.

Again, it is contended that the plea of res judicata must be held to be good, because the plaintiff acquiesced in the judgment by receiving a part of the fruits thereof. There is no doubt that acquiescence in a judgment however. manifested, constitutes what is decided by that julgment the thing adjudged, that is, it becomes thereby a final judgment, from which there can be no appeal. C. C. art. 3522,

*358But that is all. If a judgment which had become final by the lapse of time could not be pleaded as a bar to another action on account of the want of one or more of the conditions, which we have seen are necessary to give it the authority of the thing adjudged, it could not be set up as an estoppel if the judgment had become final by acquiescence.

It is immaterial how a judgment becomes res judicata; what is decided, by such a judgment, must be held to be legally true between the parties to the suit. And whether that judgment can be a bar to another action between the same parties, will depend on whether the thing demanded in the new suit be the same, and founded on the same cause of action, as in the suit decided. It is not necessary, therefore, to determine whether or not Mrs. Slocomb acquiesced in the judgment pleaded in bar of this action.

The “authority of the thing adjudged takes place only with respect to what was the object of the judgment.” C. C. art. 2265.

The object of the judgment in the matter of the succession of Egana was to compel Lizardi to restore to the possession of the executor the property which Lizardi had received from him. “II est bien entendu que e’est uniquement dans le dispositif d’un jugement, et non dans ses motifs, que se trouve la chose jugue. * * * Bien plus, le dispositif lui-méme ne presente la chose jugée que pour les points qui sont vraiment décidés, et non pour ceux que ne s’y trouvent que comme de simples enonciations; e’est en examinant les questions sur les quelles les parties étcáent en disaccord et que leur debatprésentait á décider, le quid judicandum, que l’on arrivera facilement á comprendre ce qué a été jugé, le quid judicatum.” 5 Marcadé, p. 155; Serey’s Code Annoté, notes 58, 59 and 60, art. 1351 of the Code Napoleon.

In Jeannin v. De Blanc, 11 An. p. 466, this court said, “as this right is not put in controversy by the pleadings, so it is not barred by the judgment.” 15 La. 485; 17 An. 104.

The exception should have been overruled.