On Rehearing.
Spencer, J.The facts in this case, so far as detailed in our former opinion, need not again be repeated. In that opinion we held that the parish court of Iberville was without jurisdiction, ratione materice, in the matter of the partition in this cause, for the reason that the widow having accepted and disposed of her community interests, and the heirs being of age having unconditionally accepted the succession of Austin Woolfolk, Sr., taken actual possession of its effects without opposition, after a decree recognizing their respective rights and liquidating their claims against the widow executrix, there was no longer a succession to be partitioned. We see no reason at present to change our opinion as *145then expressed, but in the view we now take that question need not be considered.
In the application for rehearing there have been pressed upon our attention preliminary questions of practice which did not receive our consideration before. The decree of partition in this case was rendered in 1869, fixing the respective rights of the co-proprietors in the property, settling the accounts between them, ordering a sale to effect the partition, and referring the parties to a notary. In August, 1874, Mrs. Labauve, Hernandez, and the Union Bank, claiming to be judicial mortgage creditors of the Widow Emily Woolfolk, defendant, filed a third opposition to regulate the effects of the sale as to themselves and claiming the proceeds of her share by preference. The sale for partition took place December, 1874, and was immediately followed by a notarial act of partition. No proceeding for homologation appears ever to have been taken. In April, 1875, Mrs. Labauve and the other opponents dismissed as in case of nonsuit their said opposition, and on same day filed another proceeding, styled an amended opposition and intervention, in which they oppose any homologation of the partition (no proceeding to homologate, however, was pending), and pray that the judgment of partition ■and all proceedings thereunder be annulled for want of jurisdiction rattone materias in the parish court, etc. Copies of this “ intervention and opposition ” were served on plaintiffs and defendants, but no citations were issued. So far as appears, there was never any judgment by default entered upon this intervention against the defendants therein, nor was it ever put at issue by any appearance or answer. The minutes show, however, that the matter was assigned for trial, without objection so far as appears, and that a mass of evidence was offered by the parties pro and con, the trial consuming several days. There was judgment defintively dismissing “ the intervention and opposition,” and from that judgment this appeal is taken.
Under this state of facts, it is material to inquire what was the nature and character of this proceeding by Mrs. Labauve and others.
First — Was it an intervention, and if so was it in due form of law ?
Second — Was it a third opposition and in due form of law?
Third — If neither an intervention or third opposition, was it an action of nullity or revocation, and in due form ?
Fourth — Where the law requires that suits be brought in the ordinary form, by petition and citation, and that they be put at issue by default, or by appearance and answer, can .parties waive these forms of law, in toto, and try a case without any issues being legally formed ?
First — In the nature of things and by express letter of the law, O. P. arts. 389 and 391, intervention is permissible only whilst the suit is pending between plaintiff and defendant. If the suit has terminated *146and judgment has been rendered, no intervention therein is possible. It is urged, however, on the authority of Stokes' vs. Stokes, 6 N. S. 350, that a suit for partition is only terminated by the decree of final homolgation, and that the judgment decreeing the partition, fixing the rights of ownership of the parties, and adjusting the collations between them is only interlocutory.
We think that the weight of authority as well as of reason is against the dictum of Stokes vs. Stokes. We consider that case overruled by Traverse vs. Rose, 10 L. R. 500; 11 L. R. 494; McCullom vs. Palmer, 1 Rob. 512 ; Blanchard vs. Blanchard, 7 An. 529, and other cases subsequent.
We are at a loss to understand why a judgment rendered upon issues regularly formed by petition and answer, passing upon the titles of the litigants, decreeing their respective portions in property, and fixing their indebtedness to each other, wants any of the essentials of a definitive decree. The rule or motion to homologate a partition when made is in some sort a new proceeding, requiring notice to the parties, and to be followed by another decree. We do not understand that upon trial of such rule one can again bring into question the matters adjudicated in the original judgment of partition ; but the contest is confined then to things done in execution of it. It is doubtless true that until this decree of homologation and confirmation is rendered the partition can not be regarded as or have the effect of a judicial partition; but that does not prevent the decree of partition, in so far as it adjudicates upon the rights of the parties, as between themselves, from being final.
In this case, the decree of partition having been rendered long before the so-called intervention, and no proceeding for homologation being pending at the time it was filed, there was no suit, and therefore-there could be no intervention.
Second — Nor can their demand be considered as a third opposition to the execution of the judgment of partition. Such opposition is permissible only in two cases—
1. When the decree is being executed upon property of which opponent claims to be the owner;
2. When opponent claims preference on the proceeds of sale. C. P. 396 et seq.
The parties do not occupy either position, and are not, therefore, their opponents.
Third — The demand is ot fact one in nullity or revocation of the decree of partition. As such it should have been brought in the ordinary form, by petition and citation.
C. P. Art. 610.,— “The party praying for the nullity of a judgment, before the court which has rendered the same, must bring his *147action by means of a petition; and. the adverse party must be cited to appear as in ordinary suits.”
Fourth — “ The joining of issue is in fact the foundation of tho suit. * * * It is only after this is done that the suit begins.” C. P. 359.
“ Judgments may be annulled if the defendant has not been legally cited, and has not entered appearance, joined issue, or had not a regular judgment by default taken against him.” C. P. 606, No. 4. See, also, 2 L. 171; 7 N. S. 285 ; 10 An. 147.
We are not prepared to say, in the presence of these provisions, that in courts of record, as ours are, parties can by silence waive and dispense with these essential legal forms, and try cases, as it were, without forms or pleadings. To tolerate such practice would be to strip judicial proceedings of all certainty, and render insecure property and rights resling upon judicial titles and decrees, and would lead to infinite confusion.
We think that the orderly conduct of judicial proceedings, as well as the public interest, require that we adhere to the rules of the Code and of the jurisprudence. The proceeding of Mrs. Labauvo and the other so-called intervcnors should have been dismissed as in .case of nonsuit, being improperly brought and never put legally at issue.
It is therefore ordered and decreed that the judgment heretofore rendered by this court be set aside; and it is now ordered that the judgment appealed from, dismissing said (interveners’) demands (definitively) be reversed ; and it is now ordered that the samo bo dismissed as in case of nonsuit; appellees paying tho costs of appeal, and appellants those of the court below.