The opinion of the Court was delivered by
Bermudez, C. J.
The plaintiffs aver, in substance, that they are the owners of a valuable plantation in the possession of defendants; that the title which these pretend to have is void, the same being a sheriff’s adjudication in furtherance of proceedings under a judgment which is absolutely null for want of a valid citation. They pray for the annulment of the judgment, as also of the adjudication, for their recognition as owners, for the expulsion of the defendants and for the recovery of rents and revenues for many years at $5000 per annum.
In bar, the defense of res judicata is raised. From the judgment sustaining that plea the plaintiffs have appealed.
There is no dispute, that there once was brought an identical suit; but the contention is, that the judgment invoked was rendered by a court incompetent ratione materice, and that it is one of nonsuit only.
It appears the plantation, at the death, of plaintiffs’ author, was very heavily encumbered with mortgage claims; that the creditors, after proceedings via ordinaria, caused it to be seized and advertised, and became the adjudicatees thereof for a great deal less than the amount of their claims.
The "plaintiffs thereafter instituted proceedings before the District .Court of Madison Parish, for an object identical with that in view in the present case. Upon a showing by defendants, the suit was removed to the United States Circuit Court for the District of Louisiana, where it was docketed, tried and decided on the law side. The jury was waived, the judge found the facts in favor of the defendants and dismissed the suit, with costs. No attempt was made to question or disturb the judgment, which, if it be valid, has by the lapse of time become definitive.
The difficulty in the case consists in determining the character of the suit in which the judgment invoked was rendered.
If it was a suit merely for the nullity of the judgment, it was one which could be brought only before the court which rendered that judgment, and which that court alone was competent to decide.
If it was a suit which contemplated another object, and in which the charge in nullify did not necessarily enter, it was a suit which could be brought before any court vested by law with power to determine actions in revendication of real estate and having jurisdiction of the persons. 99 U. S. 80.
[618]*618It cannot be denied that, if the judgment assailed was one to annul which a valid cause existed, the plaintiffs had a right to bring a proceeding to that end, and that the court which rendered the judgment attacked could, under a proper state of facts and showing, have annulled it, O. P. 606; but, if the nullity charged against the judgment was, as in this ease, founded upon defects in the proceedings, which made the judgment, on its face, an absolute nullity, there was no necessity for an action in nullity, and the plaintiffs might have ignored and disregarded it.
If the charge of nullity of judgment had been coupled with a main and controlling demand, the question of validity of judgment could.be inquired into and determined by any court having jurisdiction of that demand, which was the true or real object of. the suit. 11 L. 393, 419; 12 L. 394; 1 R. 115; 9 R. 191; 11 R. 249; 15 An. 279; 2 How. 619.
If the judgment assailed was, as alleged, an absolute nullity, it could produce no more effect than if rendered by a justice of the peace.
An execution upon it could have been considered as issued without a judgment to support it, 24 An. 253, and, as such, provisionally arrested without affidavit and bond, in the discretion of the court, 10 An. 286; for it is settled by the amplest authority that a judgment rendered against a party who has not been cited and who has not appeared, is an absolute nullity, which can be invoked, not only by such party, but also by any one interested. The case is different where the causes of nullity are latent. In such eases an action in nullity is indispensable.
1 N. S. 9; 8 N. S. 145; 1 M. 220; 6 L. 377, 577; 17 L. 42, 442; 6 R. 592; 11 R. 109; 2 An. 203, 492; 6 An. 565; 10 An. 174, 286; 13 An. 150,374; 15 An. 86; 17 An. 91; 21 An. 27; 23 An. 421; 24 An. 253; 29 An. 647 , 23 How. 132.
A judgment absolutely null for defects patent on the face of the proceedings, need not be adjudged to be such by a formal decree in a special and direct proceeding. Such judgment can produce no effect. Every thing done in furtherance of it is necessarily void. Quod est nullum, nullum producit effeotum. Sublato fundamento, cadit opus. 24 An. 253.
In an action to recover land from one who claims to have acquired it under sueh a judgment, it would not be necessary that the plaintiff should even allude to such judgment. It would bo the interest of the defendant and his duty, should he deem proper to aver title, to set forth and prop his sheriff’s deed with a valid judgment and valid proceedings in execution of it, and thus assume the attitude of a plaintiff in reconvention. Had the judgment, in this case, been as alleged an absolute nullity, the plaintiffs then would have had a right to attack and repel it instantly and collaterally, even without plea. 2 How. 169; 11 An. 546; H. D. p. 1155, see Pleading, V. (c) 1); 2) 1). The plaintiffs could then [619]*619have done, legally, what they are now doing under warrant of law, namely, charging without plea the absolute nullity of the judgment invoked as res judicata, because rendered by an incompetent court. So that it was superfluous fdr the plaintiffs to have referred to it in their petition; the more so, to have asked its nullity in their prayer. It was probably prudent for them to have done so, to draw in the title of defendants and to have placed them on their guard and prevented a continuance on the ground of surprise; but it was not indispensable for them to have alleged and sought its nullity, as they did, for such errors. We do not consider either the first or the present suit as a necessary action for the action in nullity. The property was the controlling object of the suit; the assaults made upon the apparent titles of the defendants were means to accomplish the result the more effectually. The feature of a suit in nullity was of secondary importance. The prayer for such nullity was an incident of the litigation. The suit was one at law. 10 How. 257.
But, the plaintiffs have themselves impressed upon the suit the unmistakable and indelible character of a petitory action, by proceeding against one in possession as lessee, C. P. 43, and by tryiDg it, as a case at law, before the Federal court. Being such an action, that court had jurisdiction over the subject matter. The parties waived the jury, offered evidence, among which, conspicuous, are found the very judgment and proceedings attacked, which, therefore, came to the view, knowledge and appreciation of the court. They argued and submitted their case. The judge found the facts in favor of the defendants. His finding was a substitute for a verdict. lie dismissed the suit at plaintiffs’ costs, without any reserve for a renewal of the action. U. S. R. S. 4979; 10 How. 257; 92 U. S. 180; 94 U. S. 606; 12 L. 394; 9 R.
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The opinion of the Court was delivered by
Bermudez, C. J.
The plaintiffs aver, in substance, that they are the owners of a valuable plantation in the possession of defendants; that the title which these pretend to have is void, the same being a sheriff’s adjudication in furtherance of proceedings under a judgment which is absolutely null for want of a valid citation. They pray for the annulment of the judgment, as also of the adjudication, for their recognition as owners, for the expulsion of the defendants and for the recovery of rents and revenues for many years at $5000 per annum.
In bar, the defense of res judicata is raised. From the judgment sustaining that plea the plaintiffs have appealed.
There is no dispute, that there once was brought an identical suit; but the contention is, that the judgment invoked was rendered by a court incompetent ratione materice, and that it is one of nonsuit only.
It appears the plantation, at the death, of plaintiffs’ author, was very heavily encumbered with mortgage claims; that the creditors, after proceedings via ordinaria, caused it to be seized and advertised, and became the adjudicatees thereof for a great deal less than the amount of their claims.
The "plaintiffs thereafter instituted proceedings before the District .Court of Madison Parish, for an object identical with that in view in the present case. Upon a showing by defendants, the suit was removed to the United States Circuit Court for the District of Louisiana, where it was docketed, tried and decided on the law side. The jury was waived, the judge found the facts in favor of the defendants and dismissed the suit, with costs. No attempt was made to question or disturb the judgment, which, if it be valid, has by the lapse of time become definitive.
The difficulty in the case consists in determining the character of the suit in which the judgment invoked was rendered.
If it was a suit merely for the nullity of the judgment, it was one which could be brought only before the court which rendered that judgment, and which that court alone was competent to decide.
If it was a suit which contemplated another object, and in which the charge in nullify did not necessarily enter, it was a suit which could be brought before any court vested by law with power to determine actions in revendication of real estate and having jurisdiction of the persons. 99 U. S. 80.
[618]*618It cannot be denied that, if the judgment assailed was one to annul which a valid cause existed, the plaintiffs had a right to bring a proceeding to that end, and that the court which rendered the judgment attacked could, under a proper state of facts and showing, have annulled it, O. P. 606; but, if the nullity charged against the judgment was, as in this ease, founded upon defects in the proceedings, which made the judgment, on its face, an absolute nullity, there was no necessity for an action in nullity, and the plaintiffs might have ignored and disregarded it.
If the charge of nullity of judgment had been coupled with a main and controlling demand, the question of validity of judgment could.be inquired into and determined by any court having jurisdiction of that demand, which was the true or real object of. the suit. 11 L. 393, 419; 12 L. 394; 1 R. 115; 9 R. 191; 11 R. 249; 15 An. 279; 2 How. 619.
If the judgment assailed was, as alleged, an absolute nullity, it could produce no more effect than if rendered by a justice of the peace.
An execution upon it could have been considered as issued without a judgment to support it, 24 An. 253, and, as such, provisionally arrested without affidavit and bond, in the discretion of the court, 10 An. 286; for it is settled by the amplest authority that a judgment rendered against a party who has not been cited and who has not appeared, is an absolute nullity, which can be invoked, not only by such party, but also by any one interested. The case is different where the causes of nullity are latent. In such eases an action in nullity is indispensable.
1 N. S. 9; 8 N. S. 145; 1 M. 220; 6 L. 377, 577; 17 L. 42, 442; 6 R. 592; 11 R. 109; 2 An. 203, 492; 6 An. 565; 10 An. 174, 286; 13 An. 150,374; 15 An. 86; 17 An. 91; 21 An. 27; 23 An. 421; 24 An. 253; 29 An. 647 , 23 How. 132.
A judgment absolutely null for defects patent on the face of the proceedings, need not be adjudged to be such by a formal decree in a special and direct proceeding. Such judgment can produce no effect. Every thing done in furtherance of it is necessarily void. Quod est nullum, nullum producit effeotum. Sublato fundamento, cadit opus. 24 An. 253.
In an action to recover land from one who claims to have acquired it under sueh a judgment, it would not be necessary that the plaintiff should even allude to such judgment. It would bo the interest of the defendant and his duty, should he deem proper to aver title, to set forth and prop his sheriff’s deed with a valid judgment and valid proceedings in execution of it, and thus assume the attitude of a plaintiff in reconvention. Had the judgment, in this case, been as alleged an absolute nullity, the plaintiffs then would have had a right to attack and repel it instantly and collaterally, even without plea. 2 How. 169; 11 An. 546; H. D. p. 1155, see Pleading, V. (c) 1); 2) 1). The plaintiffs could then [619]*619have done, legally, what they are now doing under warrant of law, namely, charging without plea the absolute nullity of the judgment invoked as res judicata, because rendered by an incompetent court. So that it was superfluous fdr the plaintiffs to have referred to it in their petition; the more so, to have asked its nullity in their prayer. It was probably prudent for them to have done so, to draw in the title of defendants and to have placed them on their guard and prevented a continuance on the ground of surprise; but it was not indispensable for them to have alleged and sought its nullity, as they did, for such errors. We do not consider either the first or the present suit as a necessary action for the action in nullity. The property was the controlling object of the suit; the assaults made upon the apparent titles of the defendants were means to accomplish the result the more effectually. The feature of a suit in nullity was of secondary importance. The prayer for such nullity was an incident of the litigation. The suit was one at law. 10 How. 257.
But, the plaintiffs have themselves impressed upon the suit the unmistakable and indelible character of a petitory action, by proceeding against one in possession as lessee, C. P. 43, and by tryiDg it, as a case at law, before the Federal court. Being such an action, that court had jurisdiction over the subject matter. The parties waived the jury, offered evidence, among which, conspicuous, are found the very judgment and proceedings attacked, which, therefore, came to the view, knowledge and appreciation of the court. They argued and submitted their case. The judge found the facts in favor of the defendants. His finding was a substitute for a verdict. lie dismissed the suit at plaintiffs’ costs, without any reserve for a renewal of the action. U. S. R. S. 4979; 10 How. 257; 92 U. S. 180; 94 U. S. 606; 12 L. 394; 9 R. 191; 11 R. 419; 15 An. 279; 32 An. 898; 16 How. 363; 22 Wall. 42; 10 Wheat. 406.
As a rule, a judgment rendered at law is not one of nonsuit. It always concludes the parties. It is for the plaintiff at common law to nonsuit himself before verdict and judgment. Where he does not do so, and a verdict is given followed by a judgment, and the defendant has not consented to a nonsuit being entered, the judgment is entitled to the same effect as a judgment on the merits for the defendants, and the plaintiff is barred from instituting a new action. The rule is different under our State practice, where the case is tried by the judge alone, who may nonsuit if the plaintiff has failed to adduce sufficient legal evidence to make out his case, but the law provides, however, that if the plaintiff, on a jury trial, allow the jury to withdraw before discontinuing his suit, the verdict shall be binding upon him.
Abbott L. D., see Nonsuit, p. 181; U. S. Dig. F. S. vol. XIII, see Trial, No. 4714 et seq.; Tidd, vol. 2, p. 916; Chitty’s Practice, vol. 3, pp. [620]*620910, 784; 16 How. 363. 22 Wall. 42; 10 Wheat. 406; 94 U. S. 606; 11 R. 249; 9 An. 465; L. D. p. 761, (6), (7); 12 An. 197.
It appears strange that, on plaintiffs’ own theory, they did not question the legality of the removal of the suit; that they did not by a re-pleader recast their suit, if it did unite legal and equitable grounds of relief; that they waived the jury to which they would otherwise have been entitled in a suit at law; that they did not take the case on writ of error for review, and have permitted the judgment by the course of time to become definitive and sovereign.
The United States Circuit Court was vested with a jurisdiction both at law and in equity over all the matters involved in the transferred suit. It was competent to determine its jurisdiction over the ease, and, if it assumed j urisdiction, it was competent to pass upon the issues which it presented. It has done so. It has found the facts, it has passed upon the validity of the judgment attacked, and it has decided the controversy in favor of' the defendants. This Court has no power to review the action and test the correctness of the judgment of the Circuit Court. It must and does presume that that Court has made a sound appreciation of the facts and a correct application of the law. Its action is a perpetual bar. 10 How. 257; 94 U. S. 606; 8 L. 187; 12 An. 196; 3 An. 202, 230; 32 An. 898.
Finally. Under any circumstances, the plaintiffs cannot take advantage of their own laches and derelictions and make them grounds for assailing the validity and asserting the nullity of the judgment of the Circuit Court, as, at the worst, that court could only be relatively incompetent.
It does not appear that it would be against good conscience to permit things to remain in the condition in which circumstances and the acts of parties have placed them.
18 An. 280, 507; 8 L. 101; 2 L. 180; 15 An. 273; 1 R. 523; 3 An. 346; 11 An. 33; 23 An. 147, 167.
The judgment rendered by that Court and invoked as res judicata, was properly regarded by the lower court as an insuperable barrier to a renewed assertion of the pretensions set forth in the present proceedings.
It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.
Rehearing refused.