The opinion of the court was delivered by
Todd, J.
The plaintiff brought suit in the Fifth District Court of the parish of Orleans, claiming the proceeds of 572 bales of cotton. It was alleged in the petition that the cotton originally belonged to the late John K. Elgee,'was sold during the late war by Elgee’s agent to O. S. Lobdell, and by virtue of subsequent assignments the plaintiff became entitled to the proceeds of it. That the cotton was seized by the United States forces in 1864, sold, and its proceeds paid into the treasury. That suits were instituted before the U. S. Court of Claims by Woodruff & Co., of whose rights plaintiff was the assignee, and by the executrix of Elgee’s estate for these proceeds, and that the Court of Claims had decided in favor of Woodruff & Co.; but that, subsequently, this decision had been reversed by the Supreme Court of the United States, whose decision was that the funds belonged to Elgee’s succession, and which funds at the time of bringing the present suit were, it was alleged, in possession of E. T. Parker, who was administrator of the succession of Elgee.
Defendant pleaded the exceptions of res judicata, and want of jurisdiction in the Fifth District Court to entertain the suit ratione maierice, and alleging that the Second District Court alone had jurisdiction of such a suit.
The exceptions were, by consent, tried together, and were sustained, and the plaintiff has appealed.
We presume that the agreement for the'trial of the exceptions both of res judicata and as to the jurisdiction was made .from a disposition of the parties litigant to terminate the controversy. The proceeding is somewhat anomalous in a court deciding that it had.no jurisdiction of the cause and then exercising jurisdiction by deciding the plea of res judicata. If the court had no jurisdiction, the only legitimate order it could have rendered would have been to dismiss the suit.
From the view we have taken of the case it becomes necessary that we should review the decision on both the legal points involved.
We do not consider the exception as to the jurisdiction well taken. Had the suit been brought for the cotton itself, there is no question but that it would have been properly brought in the Fifth District Court. The suit is not for the cotton, but to recover its proceeds. Had these [537]*537proceeds, after the sale of the cotton, been passed into the treasury of the United States and been mingled indiscriminately with the funds in the treasury, and the amount of the same, if in money, subsequently paid over by the United States to the legal representative of Elgee’s succession, so as to render it impossible to identify the particular fund arising from the sale of this cotton, then it would present the question whether plaintiff was a creditor of that succession on account of the conversion or withdrawing of money to which he was entitled. For the purpose of this exception, however, we must take as true the allegations of the petition, which are in substance, that the cotton was sold at public auction and the proceeds applied and invested in interest-bearing bonds of the United States. It is, then, a suit not for so much money, alleged to be owing by the succession of Elgee, but for the recovery of this fund, or these bonds representing it, and which are presumed to be easy of identification. Now an action of this kind, although. it might not be defined to be a real action according to the definition of our Code of Practice, since a real action proper, by the terms of the Code, would seem to be confined ‘to suits for the recovery of land or a real right, yet it is a species of action closely allied to such action, and fully recognized in the French jurisprudence, from which we derive our system of practice.
Thus, Pothier, vol. 8, p. 237, g1, sec. 282, says : “ Quelles choses peuvent étre l’objet de Taction en revendication ? Toutes les différentes choses particuliéres, dont nous avons le domaine de proprióté, peuvent étre objet de Taction de revendication, les meubles aussi bien que les immeubles.” See, also, Bonjean, Traité des Actions : “ II semble done qu’on pourrait definir Taction réelle, celle qui repose sur la violation d’un jus in reTet Taction personelle, celle qui fepose sur la violation d’un jus ad rem.” This is an action founded evidently upon an alleged jus in re, an action of revendication.
The plea to the jurisdiction should, therefore, have been overruled.
"We come next to the plea of res judicata.
Article 2286 of the Civil Code declares : “ The authority of the thing adjudged takes place only witn respect to what was the object of the judgment. The thing demanded must be the same ; the demand must be founded on the same cause of action ; the demand must be between the same parties, and formed by them against each other in the same quality.” As more tersely expressed : Eadem res, eadem causa, eadem conditio personarían.
The thing demanded before the United States tribunals was the fund arising from the sale of the cotton sued for in this case ; the cause of action was the alleged sale from Elgee of the cotton in question, which is also relied on in this suit as the basis or origin of plaintiff’s [538]*538.right to the proceeds of the same; the demand is between the same ¡partiesfor Woodruff & Co. were the assignors to plaintiff of their rights in the cotton, derived originally from the alleged sale, and was likewise a member of the firm of Woodruff & Go., and the effect of res ljudicata has always been held to extend to the successors of the aijant ■cause, the assignees of the parties, and all those who claim through, them, 8 An. 126 ; and the quality or capacities of the parties are the same, the succession of Elgee being represented in the United States •courts by its executrix, and in this suit by its administrator.
It would seem from this statement that the facts and issues recited would present a complete and perfect case of a thing adjudged, and support fully- the plea urged.
It is, however, contended by the counsel for the appellant, that in the proceeding before the United States courts there was no issue joined between the parties inter sese by interpleader or otherwise, but that (Separate suits were instituted by Elgee’s succession, and by the plaintiff’s firm of Woodruff & Co. against the United States to test the right •of each party as against the United States to the funds in question.
We find, however, from an examination of those proceedings, that these separate suits were consolidated and tried together, and but one, .judgment rendered in the matters at issue therein. This action of the «court necessitated a trial of the respective rights of the two claimants to the fund in controversy. If it decided that the United States was without right to the fund, it was necessarily compelled to decide to which one of the claimants it did belong. A decision that it belonged •to the succession of Elgee excluded by necessity the idea or claim that it belonged to Woodruff & Co. And although the issue between the contending claimants may"not have been joined, and the pleadings con-' ducted according to the practice of our courts, yet from the very nature and circumstances of the case the issue was made and tried, and it is to toe presumed that every opportunity was afforded to the rival contestants ■to establish their respective rights.
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The opinion of the court was delivered by
Todd, J.
The plaintiff brought suit in the Fifth District Court of the parish of Orleans, claiming the proceeds of 572 bales of cotton. It was alleged in the petition that the cotton originally belonged to the late John K. Elgee,'was sold during the late war by Elgee’s agent to O. S. Lobdell, and by virtue of subsequent assignments the plaintiff became entitled to the proceeds of it. That the cotton was seized by the United States forces in 1864, sold, and its proceeds paid into the treasury. That suits were instituted before the U. S. Court of Claims by Woodruff & Co., of whose rights plaintiff was the assignee, and by the executrix of Elgee’s estate for these proceeds, and that the Court of Claims had decided in favor of Woodruff & Co.; but that, subsequently, this decision had been reversed by the Supreme Court of the United States, whose decision was that the funds belonged to Elgee’s succession, and which funds at the time of bringing the present suit were, it was alleged, in possession of E. T. Parker, who was administrator of the succession of Elgee.
Defendant pleaded the exceptions of res judicata, and want of jurisdiction in the Fifth District Court to entertain the suit ratione maierice, and alleging that the Second District Court alone had jurisdiction of such a suit.
The exceptions were, by consent, tried together, and were sustained, and the plaintiff has appealed.
We presume that the agreement for the'trial of the exceptions both of res judicata and as to the jurisdiction was made .from a disposition of the parties litigant to terminate the controversy. The proceeding is somewhat anomalous in a court deciding that it had.no jurisdiction of the cause and then exercising jurisdiction by deciding the plea of res judicata. If the court had no jurisdiction, the only legitimate order it could have rendered would have been to dismiss the suit.
From the view we have taken of the case it becomes necessary that we should review the decision on both the legal points involved.
We do not consider the exception as to the jurisdiction well taken. Had the suit been brought for the cotton itself, there is no question but that it would have been properly brought in the Fifth District Court. The suit is not for the cotton, but to recover its proceeds. Had these [537]*537proceeds, after the sale of the cotton, been passed into the treasury of the United States and been mingled indiscriminately with the funds in the treasury, and the amount of the same, if in money, subsequently paid over by the United States to the legal representative of Elgee’s succession, so as to render it impossible to identify the particular fund arising from the sale of this cotton, then it would present the question whether plaintiff was a creditor of that succession on account of the conversion or withdrawing of money to which he was entitled. For the purpose of this exception, however, we must take as true the allegations of the petition, which are in substance, that the cotton was sold at public auction and the proceeds applied and invested in interest-bearing bonds of the United States. It is, then, a suit not for so much money, alleged to be owing by the succession of Elgee, but for the recovery of this fund, or these bonds representing it, and which are presumed to be easy of identification. Now an action of this kind, although. it might not be defined to be a real action according to the definition of our Code of Practice, since a real action proper, by the terms of the Code, would seem to be confined ‘to suits for the recovery of land or a real right, yet it is a species of action closely allied to such action, and fully recognized in the French jurisprudence, from which we derive our system of practice.
Thus, Pothier, vol. 8, p. 237, g1, sec. 282, says : “ Quelles choses peuvent étre l’objet de Taction en revendication ? Toutes les différentes choses particuliéres, dont nous avons le domaine de proprióté, peuvent étre objet de Taction de revendication, les meubles aussi bien que les immeubles.” See, also, Bonjean, Traité des Actions : “ II semble done qu’on pourrait definir Taction réelle, celle qui repose sur la violation d’un jus in reTet Taction personelle, celle qui fepose sur la violation d’un jus ad rem.” This is an action founded evidently upon an alleged jus in re, an action of revendication.
The plea to the jurisdiction should, therefore, have been overruled.
"We come next to the plea of res judicata.
Article 2286 of the Civil Code declares : “ The authority of the thing adjudged takes place only witn respect to what was the object of the judgment. The thing demanded must be the same ; the demand must be founded on the same cause of action ; the demand must be between the same parties, and formed by them against each other in the same quality.” As more tersely expressed : Eadem res, eadem causa, eadem conditio personarían.
The thing demanded before the United States tribunals was the fund arising from the sale of the cotton sued for in this case ; the cause of action was the alleged sale from Elgee of the cotton in question, which is also relied on in this suit as the basis or origin of plaintiff’s [538]*538.right to the proceeds of the same; the demand is between the same ¡partiesfor Woodruff & Co. were the assignors to plaintiff of their rights in the cotton, derived originally from the alleged sale, and was likewise a member of the firm of Woodruff & Go., and the effect of res ljudicata has always been held to extend to the successors of the aijant ■cause, the assignees of the parties, and all those who claim through, them, 8 An. 126 ; and the quality or capacities of the parties are the same, the succession of Elgee being represented in the United States •courts by its executrix, and in this suit by its administrator.
It would seem from this statement that the facts and issues recited would present a complete and perfect case of a thing adjudged, and support fully- the plea urged.
It is, however, contended by the counsel for the appellant, that in the proceeding before the United States courts there was no issue joined between the parties inter sese by interpleader or otherwise, but that (Separate suits were instituted by Elgee’s succession, and by the plaintiff’s firm of Woodruff & Co. against the United States to test the right •of each party as against the United States to the funds in question.
We find, however, from an examination of those proceedings, that these separate suits were consolidated and tried together, and but one, .judgment rendered in the matters at issue therein. This action of the «court necessitated a trial of the respective rights of the two claimants to the fund in controversy. If it decided that the United States was without right to the fund, it was necessarily compelled to decide to which one of the claimants it did belong. A decision that it belonged •to the succession of Elgee excluded by necessity the idea or claim that it belonged to Woodruff & Co. And although the issue between the contending claimants may"not have been joined, and the pleadings con-' ducted according to the practice of our courts, yet from the very nature and circumstances of the case the issue was made and tried, and it is to toe presumed that every opportunity was afforded to the rival contestants ■to establish their respective rights.
To ascertain what was decided in the Supreme Court of the United States, with a view to determine the bearing of such decision upon the ■question before us, we must look to the record of the Court.
This is the statement of the case we find : “ Appeals from the Court ■of Claims, in which the representatives of one Elgee claimed the net proceeds in the treasury of the United States of the sale of certain cotton, under what is known as the captured and abandoned property act; the right of said Elgee being disputed by a firm of Woodruff & Co., and also by a certain Mrs. Nutt, executrix of one Haller Nutt, M. D., both of which parties claimed adversely to Elgee and to one another.”
And, again, we quote from the 'decision : “The fundamental ques-[539]*539Hon, in all' the cases, is, whether Elgee parted with the ownership, by -either of the contracts under which the different parties claim.”
Be it noted, that Woodruff & Co. in that proceeding relied on the •same contract to establish their claim that is made in this suit the basis ■of their demand.
And, again, the Court say : “ We are then to inquire whether either Woodruff & Co., or Haller Nutt, had acquired the ownership of the cotton prior to its seizure by the agent of the United States ; for if either of these parties had become the owner and entitled to the proceeds of its sale before that date that party is .entitled to a judgment for the samé remaining in the treasury after the deductions are made provided by the statute. If, on the other hand, neither of those parties has shown that Elgee parted with his title; if the ownership .remained in Elgee until after the seizure and until his death, his representatives are the •only persons that are authorized to sue for the proceeds of the cotton ■in the Court of Claims, for they only are the owners, whatever equities anay exist in favcr of the parties who contracted to buy.”
And again: “In our judgment, therefore, the contract of July, 1863, ' •contract under which Woodruff & Co. claimed in that proceeding, and the plaintiff in this, must be regarded as only an agreement to sell, and •not as affecting a transfer of the ownership. It left the property of Elgee where it was before.”
* * * * * *
" This disposes of the whole case. The property in the cotton was in Elgee, and neither of the contracts proved divested him of his ownership. The result is that his personal representatives are entitled to a .judgment for the entire proceeds of the cotton held in trust for the •owner.” 22 Wall. 180.
It will be seen from the above quotations that the identical question presented by the pleadings in this case for decision was before the United States Supreme Court, and was by that Court expressly and ■finally decided.
It is, however, contended, that the Court of Claims had no jurisdiction of the case, because it was a matter of controversy between citizens of the same State, and we are asked to decide that the Supreme •Court of the United States rendered a final judgment in a case in which It had no jurisdiction, and to treat its decision as an absolute nullity. The plaintiff not only submitted to the jurisdiction of the Court of ■Claims, but provoked it, made no objection, so far as the record dis- ■ closes, when the different suits were consolidated and the issues between the contesting parties tried together, and one judgment rendered in the ■ease. It is admitted that the court had full and complete jurisdiction ¿as between the claimants and the Federal Government; it then became, [540]*540as we have shown above, an incident, a necessity, in the exercise of this-acknowledged jurisdiction to determine the question of right between these contesting claimants. Besides, it is well settled that when a court has no jurisdiction of a ease ratione materice, and the ease is appealed,, the appellate court is bound to notice proprio motu this want of jurisdiction and dismiss the suit. In this instance the Supreme Court of the United States not only did not so declare a want of jurisdiction, but exercised jurisdiction by deciding every issue involved in the case, and the-judgment thus rendered is, therefore, as conclusive upon the question of jurisdiction as upon any other point determined, and its decision upon, this question, thus given, is binding on us.
• The plea of res judicata was therefore well taken and properly-maintained.
It is therefore ordered, adjudged, and decreed that the judgment of' the lower court be affirmed with costs.
Rehearing refused.