Conery v. Rotchford, Brown & Co.

The opinion of the court on the original hearing was delivered by E&an, J., and on the rehearing by DeBlanc, J.

Egan, 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, several months before the filing of suit or rendition of judgment, which was rendered solely upon the confession of one R. A. Bourk, claiming to be the agent of the firm of Rotchford, Brown & Co.

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 ruled iu regard to the same power of attorney in Johnson vs. Brown, 18 A. 337, in which case one of the present defendants was sole defendant. There was then no citation to or representation of any of the defendants in the original suit in which the judgment was rendered, the revival of which is here sought.

“ 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-the revival if, in fact, the judgment had no real existence, or force in law as such. Courts of justice deal with the substance and not the' shadow of causes. It can not be for a moment doubted that a party condemned without citation or hearing could sue to have that fact judicially determined, and yet more evidently that he may use the same fact as an exception to preserve his' rights if sued. C. P. article 20. This he may do at any time the judgment so obtained is sought to be enforced against him, for any purpose or in any manner; and even could it be held that he must bring such suit within a fixed time, as it can not by the express terms of article 612 C. P. Nowhere and to no class of cases is more applicable the maxim: “ Quce temporalia sunt ad agendum perpetua sunt ad excipiendum.” We have been referred by plaintiff’s counsel to the cases af Drogue and Moreau, 23 A. 173; Carondelet Canal Navigation Company vs. De St. Romes, 23 A. 437; and McStea vs. Rotchford, Brown & Co., decided by the present court, and reported in 29 A. p. 69. These are all suits to revive judgments. The first case decides nothing except that in a proceeding to revive a judgment the question whether it was rendered upon sufficient evidence can not be inquired into. The case was twice before our predecessors, and is first reported in 21 A. p. 639, from which it appears that it was remanded because the record did not contain satisfactory evidence of the existence of the judgment and of its ownership by the plaintiff, it appearing that the judgment was rendered by default and no citation appeared in the record as originally sent up; a fact which the court considered, as we do in the present case, essential to the existence of the judgment. The present court also held in a case not reported, decided at Monroe in July last,, that in a proceeding to revive the evidence upon which the judgment was rendered, the basis of the claim sued on could not be inquired into. In the St. Romes case the defendant averred that she was not legally cited and had not signed nor authorized the signing of the obligation sued on. The court said: “The record shows she was legally cited,”’ and that the other ground of defense should have been established before judgment, and was not a defense in such action. The 29th A. case of McStea vs. Rotcliford, Brown & Co. is the only one which seems to support the views of the plaintiff’s counsel. An evident error crept into the opinion in that case in regard to the decision in the St. Romes case, in which as we have seen the court did not, as stated in the opinion in the McStea case, “ reject ” the plea of want of citation, but on the contrary said that “ the record disproved the truth of the plea.” There was at the time considerable hesitation on the part of some members of the court as to the decision itself, and it will be observed that it was said '‘perhaps a total and entire want of citation to any one might be pleaded,” and the effect of the decision was carefully guarded and confined to the arresting of prescription, without in any manner validating-the judgment if affected with nullities. Further reflection and examination of authority in the present case leave upon our minds no room for ' doubt upon the subject. The want of citation in the original suit affects the judgment with such absolute nullity that it may be pleaded even in an action to revive under the statute for the arresting of prescription, and constitutes good cause why no judgment of revival should be rendered.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed with costs of both courts.

Manning, C. J.

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 proceeding is merely to keep in force the judgment rendered in 1859 by interrupting prescription,” contains the gist of the controversy, and in my judgment is the true exposition of the law, and it has been so held in every case by this court until the present one.

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.