The opinion of the court on the original hearing was delivered by E&an, J., and on the rehearing by DeBlanc, J.
This is a proceeding under article 2813 of the R. S. of 1870, and article 3547 of the Rev. C. C., to revive a judgment of the Second District Court of Orleans, alleged to have been rendered in December, 1863. The statute provides “ that any party interested in any judgment may have the same revived at any time before it is prescribed by having a citation issued according to law to the defendant, or his representative, from the court which rendered the judgment, unless defendant or his represeptatives show good cause icliy the judgment should not he revived.” The cause shown by the defendants in this case is that the judgment is absolutely null by reason of the defendants never having been cited, and because the firm of Rotchford, Brown & Co. was dissolved by the death of Johnson, one of its members, in July, 1863, sev
The evidence discloses the death of Johnson at the date named in the answer; that there was no citation to the firm nor to any of the individual members; and that the judgment was based solely upon the written confession of Bourk, who claimed to act under and by virtue of a power of attorney given in 1858, by the firm of Botchford, Brown & Co., and not by the individual members. The original petition did not pray for citation to a judgment against the firm, but only to and against the individual members, none of whom, as we have seen, were cited, and one of whom was at the time dead. Bourk answered for “ the defendants,” confessing and consenting to judgment as prayed for, which was accordingly entered against the individual members of the iirm in solido, and not against the firm. The power of attorney to Bourk was from the firm eo nomine; was signed by but one member of the firm for it, and contained no stipulation or authorization for any purpose from the individual members of the firm to act for or represent them in any manner whatever, and no judgment was prayed for or rendered against the juridical being, the partnership, which alone he was •ever authorized to represent for any purpose. It is therefore not necessary to inquire, under this state of facts, whether, had such judgment been rendered after the dissolution of the firm by the death of Johnson, without the knowledge of Bourk,- its mandatory, it would have effect, nor whether he had, under the mandate, power to confess judgment. It may, however, not be out of place to remark that it was expressly held by this court in Brashear vs. Dwight, 2 A. 404, that the presumed continued existence of the firm for the purpose of its obligation, by reason of dealings without notice of dissolution, which can only be maintained upon the doctrine of the united agency of the partners, is very distinct from “ the manner of bringing the partners of a dissolved partnership into court.” In that case the plaintiff, one of the members of a commercial firm, enjoined the execution of a judgment against the firm, upon the ground that he had never been cited, and had no knowledge of the suit until the seizure of his property by the sheriff, and that the citation was served upon one of his partners after the dissolution; and the court held that he was entitled to personal citation, and that the judgment could not be executed against him. It needs no citation of authority for the proposition that a partnership is an “ ideal ” or juridical “ being,” as perfectly distinct from the individuals who compose it as one individual person is from another, as was said in Tury vs. Harris, 10 A. 625; and that a power of attorney or mandate from the partnership gives no' power to represent the partners as individuals. This was expressly
“ Citation being the essential ground of all civil actions in ordinary proceedings, the neglect of that formality annuls radically all proceedings had, unless the defendant have voluntarily appeared to the suit and answered the demand.” O. P. article 206. The nullity may be alleged even collaterally in any form of proceeding, by any one having the least interest to have the nullity pronounced. 1 N. S. 9; 21 A. 26; Williams vs. Clark, 11 A. 761; 24 A. 252; 8 N. S. 145; 6 L. R. 577.
In order to constitute a suit or action there must be at least two parties present or represented. C. P. article 99; 6 N. S. 517; 4 L. 158; 5 L. 424; 17 L. 479.
No valid judgment can be rendered against a party where there is no suit, nor where he has not been legally cited. 17 A. 91; 21 A. 613; same 630; Michie vs. Brown & Co. ct al., 20 A. 75, a case where citation was served at the place of business of the firm after its dissolution and without notice of dissolution upon an agent of one of the partners, who was also chief clerk of the firm, and the court held that “ the citation was insufficient and the judgment without effect.”
It is elementary that suit can not be brought against a dead man, and our own Code of Practice points out the mode of proceeding where one dies against whom there is a cause of action., Article 120. It is, however, urged by counsel that article 2813 of the R. S. and article 3547 of the R. C. C. only fix the prescription of judgments, and the mode of arresting that prescription; and that under this proceeding to revive a judgment, it can not be annulled or pronounced null. That is very true as to all relative nullities, but not as to absolute nullities, such as the want of citation, without which there was and could be neither suit nor valid judgment, as we have. seen. It is essential to the revival of a judgment that there should be a subsisting one. That the party seeking revival has such valid judgment is an essential allegation and fact to be proven in a proceeding to revive it; and if it be essential both to allege and prove its valid existence, that fact may be disproved by the defendant, and certainly constitutes not only “ good cause ” against the revival, in the language of the statute, but the best possible cause (i. e.)that what has the form of and appears to be a valid and subsisting judgment is not so either in fact or law.
It would indeed be a vain thing to vex the courts with inquiry and the defendant with citation if he were not allowed to contest the very existence of the thing sought to be revived, and equally vain would be-
It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed with costs of both courts.
I adhere to the doctrine of the previous cases, and enforced with some elaboration in McStea v. Rotchford, 29 Annual, 69, and re-affirmed in Burnside v. Rotchford and Pace v. Marbury, both decided last year and unreported.
There can be but one issue in a suit to revive a judgment, and that is whether it exists — not whether it ought to oxist, or ought ever to have been rendered, but simply and solely whether such a judicial act was ever done as rendering it. And this is obvious to my mind when you consider how and why a suit for revival is instituted. A suit of that kind was unknown to our law until a few years ago. The first one ever instituted was probably in 1861, and they became necessary because an Act of 1853 had taken judgments out of the category of imprescriptible things: That law made a judgment prescriptible by the lapse of ten years, and if it had stopped there, -there would have been no means of averting prescription, for whilé the law has always declared that notes and mortgages etc shall be prescribed, it has in the same breath told you how to prevent its acquisition. Therefore because the act of 1853 made a judgment prescriptible, it had to provide the means of averting prescription, and that is all it does. That is its sole object, and its title is terse and significant — ‘ an act relative to the prescription of judgments.’ Acts 1853, 250.
When then you admit any other issue in a suit for the revival of a judgment than judgment vel non, you apply the statute to other purposes than those it was designed for. If you permit a party to plead causes of nullity you virtually construe it as an amendment to art. 556 of the Code of Practice, which has for its object the designation of the modes of annulling a judgment.
I must also maintain the correctness of the interpretation put upon the St. Romes case in the opinion read by me in McStea v. Rotchford, and I do this with great deference to the contrary views just expressed by my colleagues. The enunciation there made that “the object of this
If there had never been any prescription applied to judgments, there would never have been any occasion to revive them. The suit to revive is merely the means, and the sole means, to prevent prescription, and the only inquiry in such suit is, was such judgment ever rendered ? A judgment of revival does nothing more than decree that such judgment had been theretofore rendered, and does not preclude any attack upon it from any quarter for any cause save only prescription, which the statute of 1853 was specially designed to save.