ÜSLEY, J.
This is an action to annul a' judgment rendered by the Fifth District Court of New Orleans, in the month of June, 1864, in the suit then therein pending of “Louis Mestier v. The New Orleans and Opelousas Railroad Company and Ambrose Lanfear,” by which said judgment, Louis Mestier recovered from Ambrose Lanfear the sum of fifteen thousand dollars.
This last-mentioned suit had been previously before this Court on appeal, and had been remanded to tho . District Court for a new trial, the defendant Lanfear having been, by the first judgment, condemned to pay the plaintiff Mestier ten thousand dollars.
The principal ground of nullity now in this suit set up by Lanfear is, that the suit remanded was tried ex parte in the District Court, by an incompetent Judge; that he had no notice of the trial thereof, and was not represented by counsel thereat.
The defence against this action is a general denial and tho special averment that the judgment sought to be annulled is valid in all respects,’ and that the defendant, Lanfear, has renounced all objections and defences to the same, if any ever existed, by his own conduct and acts. By an amended answer, Mestier alleged that, since the filing of his original answer, Lanfear has paid the judgment which he now 3eeks to set aside, and can no longer proceed against the same, the objections to it having been renounced by the voluntary execution and payment thereof.
Lanfear admits the payment of the judgment to Mestier, but says it was enforced against him, and that he paid it under execution issued thereon.
The main ground of nullity is tho legal incapacity of the Judge of the Third District Court to preside and try cases in the Fifth District Court, so long as the Court has no regular incumbent Judge.
If this incompetence is established by Lanfear, Article 612 of the Code of Practice entitles him to have the judgment objected to, pronounced a nullity — non est major defectus quam defectus potestatis — but, if in this he is unsuccessful, all the other grounds relied on by him must prove unavailable.
The evidence does not enable us to say, with any degree of certainty, whether, at the trial of the case of Mestier v. Lanfear, in the Fifth District Court, the judgeship therein was vacant. It merely establishes the fact that no Judge was appointed for that Court, after the capture of the city, until the appointment of Judge Leaumont; but, taking this for granted, was the Judge of the Third District Court empowered by any law of the State to try and decide cases in the Fifth District Court ? We can find nothing in the Act of the Legislature of the 23d February, I860, which purports to amend the act entitled “ An act relative to District Courts, approved March 15thi 1865,” so confidently relied on by Mestier’a counsel, to enable a neighboring Judge to try cases in another Court, wherein the judgeship is vacant.
[506]*506The clause relied on, in the Act of 1860, reads thus :
“ Whenever any District Judge shall be absent from his district, or shall recuse himself or be recused, or shall be unable to act by reason of sickness, or any other cause whatever, or whenever the office shall become vacant by reason of death, resignation or otherwise, the Judge of the neighboring district shall have the power, and it shall be his duty, to grant all orders which might be granted by the Judge of the district.”
This evidently refers to the orders which, by the article amended, a Judge was required to grant in chambers, and such orders as are mentioned in the 32d section of the Act amended by the Act of 1860.
By the Act of 1855, No. 255, page 316, which refers exclusively to the Courts of New Orleans, provision was made for supplying temporarily, in case of recusation of the Judge of any District Court, a Judge from one of the other Courts to preside in place of the Judge recused ; but there is nothing in that act that authorizes judges of other Courts to preside in one wherein the judgeship is vacant, by reason of death, resignation, or otherwise. It does not, however, necessarily follow that, because the Judge of the Third District Court did not derive his authority to try a case in the Fifth District Court from the State laws, that he was acting without authority in presiding thereat in that Court.
At the time of the rendition of the judgment sought to be annulled, the city of New Orleans was under the complete dominion and absolute control of the Federal military authorities. The government established by them recognized no law but such as met its unqualified sanction and approval. It not only prescribed the rule of conduct for the inhabitants of the conquered city, but established a judiciary, appointed judges, whose judicial functions were exercised under its supervision. Lanfear, the plaintiff, fully realized this state of things, for, in the very proceeding of which he now complains, he invoked, and successfully too, the aid of the military. It was from this military government that the Judge of the Third District Court derived his authority to exercise in the Fifth District Court the same functions as the Judge of that Court might have exercised.
The defendant offered in evidence, but did not produce, the order of General Shepley, military governor, requiring the judges to hold the sessions of the Fourth and Fifth District Courts, and to terminate pending cases.
Having judicial knowledge that such an order was issued and acted upon, can-this Court notice it without proof ? Courts will judicially take notice, without proof, of whatever ought to be generally known within the limits of their jurisdiction; and this Court cannot ignore an historical fact in relation to the source whence Judges of Courts, over which it exercises appellate jurisdiction, derived their power to preside in other tribunals, at a time when the State laws were merely subsidiary to military rule.
[507]*507But it is urged by Lanfear that he had no notice of the trial; that his counsel of record in the suit were absent from the State when the, trial took place; that he was not represented thereat, and that some unfair advantage was taken of him.
In the case of Swain v. Sampson, 6 An. 800, this Court said : “ We held, in Trisloe v. Norris, 3 An. 646, that, to annul a judgment, a case must be exhibited of matter which would make it against good conscience to execute the judgment; matter of which the injured party could not have availed himself in the former litigation, or of which he was prevented by fraud or accident from availing himself. The matter must also be such as the party, by the use of reasonable diligence, could not have known ; for, if there have been laches or negligence, that destroys the title to relief. ” Story’s Equity Jurisprudence, g 887. Story’s Equity Pleadings, g 414. Garlick v. Reece, 8 L. R. 101. McMecken v. Millaudon, 2 L. R.180. Winn v. Womack, 15 An. 273.
Whatever hardship might result to Lanfear from the judgment complained of, he must, to be relieved from it, have conformed to those essential requirements, which equity itself exacts from suitors who invoke its aid; he must have used reasonable diligence, and not have been guilty of laches or negligence. Has he used every reasonable diligence, and not neglected to use such means as he possessed to prevent the evil of which he is complaining ?
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ÜSLEY, J.
This is an action to annul a' judgment rendered by the Fifth District Court of New Orleans, in the month of June, 1864, in the suit then therein pending of “Louis Mestier v. The New Orleans and Opelousas Railroad Company and Ambrose Lanfear,” by which said judgment, Louis Mestier recovered from Ambrose Lanfear the sum of fifteen thousand dollars.
This last-mentioned suit had been previously before this Court on appeal, and had been remanded to tho . District Court for a new trial, the defendant Lanfear having been, by the first judgment, condemned to pay the plaintiff Mestier ten thousand dollars.
The principal ground of nullity now in this suit set up by Lanfear is, that the suit remanded was tried ex parte in the District Court, by an incompetent Judge; that he had no notice of the trial thereof, and was not represented by counsel thereat.
The defence against this action is a general denial and tho special averment that the judgment sought to be annulled is valid in all respects,’ and that the defendant, Lanfear, has renounced all objections and defences to the same, if any ever existed, by his own conduct and acts. By an amended answer, Mestier alleged that, since the filing of his original answer, Lanfear has paid the judgment which he now 3eeks to set aside, and can no longer proceed against the same, the objections to it having been renounced by the voluntary execution and payment thereof.
Lanfear admits the payment of the judgment to Mestier, but says it was enforced against him, and that he paid it under execution issued thereon.
The main ground of nullity is tho legal incapacity of the Judge of the Third District Court to preside and try cases in the Fifth District Court, so long as the Court has no regular incumbent Judge.
If this incompetence is established by Lanfear, Article 612 of the Code of Practice entitles him to have the judgment objected to, pronounced a nullity — non est major defectus quam defectus potestatis — but, if in this he is unsuccessful, all the other grounds relied on by him must prove unavailable.
The evidence does not enable us to say, with any degree of certainty, whether, at the trial of the case of Mestier v. Lanfear, in the Fifth District Court, the judgeship therein was vacant. It merely establishes the fact that no Judge was appointed for that Court, after the capture of the city, until the appointment of Judge Leaumont; but, taking this for granted, was the Judge of the Third District Court empowered by any law of the State to try and decide cases in the Fifth District Court ? We can find nothing in the Act of the Legislature of the 23d February, I860, which purports to amend the act entitled “ An act relative to District Courts, approved March 15thi 1865,” so confidently relied on by Mestier’a counsel, to enable a neighboring Judge to try cases in another Court, wherein the judgeship is vacant.
[506]*506The clause relied on, in the Act of 1860, reads thus :
“ Whenever any District Judge shall be absent from his district, or shall recuse himself or be recused, or shall be unable to act by reason of sickness, or any other cause whatever, or whenever the office shall become vacant by reason of death, resignation or otherwise, the Judge of the neighboring district shall have the power, and it shall be his duty, to grant all orders which might be granted by the Judge of the district.”
This evidently refers to the orders which, by the article amended, a Judge was required to grant in chambers, and such orders as are mentioned in the 32d section of the Act amended by the Act of 1860.
By the Act of 1855, No. 255, page 316, which refers exclusively to the Courts of New Orleans, provision was made for supplying temporarily, in case of recusation of the Judge of any District Court, a Judge from one of the other Courts to preside in place of the Judge recused ; but there is nothing in that act that authorizes judges of other Courts to preside in one wherein the judgeship is vacant, by reason of death, resignation, or otherwise. It does not, however, necessarily follow that, because the Judge of the Third District Court did not derive his authority to try a case in the Fifth District Court from the State laws, that he was acting without authority in presiding thereat in that Court.
At the time of the rendition of the judgment sought to be annulled, the city of New Orleans was under the complete dominion and absolute control of the Federal military authorities. The government established by them recognized no law but such as met its unqualified sanction and approval. It not only prescribed the rule of conduct for the inhabitants of the conquered city, but established a judiciary, appointed judges, whose judicial functions were exercised under its supervision. Lanfear, the plaintiff, fully realized this state of things, for, in the very proceeding of which he now complains, he invoked, and successfully too, the aid of the military. It was from this military government that the Judge of the Third District Court derived his authority to exercise in the Fifth District Court the same functions as the Judge of that Court might have exercised.
The defendant offered in evidence, but did not produce, the order of General Shepley, military governor, requiring the judges to hold the sessions of the Fourth and Fifth District Courts, and to terminate pending cases.
Having judicial knowledge that such an order was issued and acted upon, can-this Court notice it without proof ? Courts will judicially take notice, without proof, of whatever ought to be generally known within the limits of their jurisdiction; and this Court cannot ignore an historical fact in relation to the source whence Judges of Courts, over which it exercises appellate jurisdiction, derived their power to preside in other tribunals, at a time when the State laws were merely subsidiary to military rule.
[507]*507But it is urged by Lanfear that he had no notice of the trial; that his counsel of record in the suit were absent from the State when the, trial took place; that he was not represented thereat, and that some unfair advantage was taken of him.
In the case of Swain v. Sampson, 6 An. 800, this Court said : “ We held, in Trisloe v. Norris, 3 An. 646, that, to annul a judgment, a case must be exhibited of matter which would make it against good conscience to execute the judgment; matter of which the injured party could not have availed himself in the former litigation, or of which he was prevented by fraud or accident from availing himself. The matter must also be such as the party, by the use of reasonable diligence, could not have known ; for, if there have been laches or negligence, that destroys the title to relief. ” Story’s Equity Jurisprudence, g 887. Story’s Equity Pleadings, g 414. Garlick v. Reece, 8 L. R. 101. McMecken v. Millaudon, 2 L. R.180. Winn v. Womack, 15 An. 273.
Whatever hardship might result to Lanfear from the judgment complained of, he must, to be relieved from it, have conformed to those essential requirements, which equity itself exacts from suitors who invoke its aid; he must have used reasonable diligence, and not have been guilty of laches or negligence. Has he used every reasonable diligence, and not neglected to use such means as he possessed to prevent the evil of which he is complaining ?
He was well acquainted with the nature of the suit pending against him, and all the facts and circumstances thereof, for it had been already tried contradictorily with him in the District Court and in this Court, on appeal, and he had succeeded in reversing the judgment rendered against him in favor of Mestier for a large amount, and having the case remanded to the lower Court to be tried de novo.
He must have been aware of the absence of - his counsel from the city, and that the Court in which his suit was pending was open for the transaction of judicial business, and that Mestier had the legal right to have his case' tried, whether he was present thereat, personally, or by counsel or not; and yet, residing in the city and being on the spot, he takes no steps whatever to engage the services of other counsel, or to take part in the trial of the case. Locket v. Toby, 10 An. 714; Shields v. Lanna, 10 An. 193; Dwight v. Richard, 4 An. 210; and authorities therein cited; 9 Rob. 177; 13 La. 454.
Such laches on his part precludes him from the equitable interference of the Courts; for as was well said in McRae v. Purvis, 12 An. 85, “ to permit an action of nullity in such a case, would be a premium for neglect.”
, The unsettled and disastrous state of public affairs then prevailing in the city, instead of lulling him into security, should have aroused his vigilance in the protection of his interests, which he should not have suffered to be jeoparded by his own negligence. Apart from the fact, that [508]*508the trial took place without his active participation therein, we can perceive neither fraud nor other ill practice, of which, indeed, there is no specific averment, to cancel the judgment; and the presumption of the law is that the proceedings were regular. “Omnia praasumuntur rite et solemniter esse acta donee probetur in contrarium.”
The rules of proceeding in our Courts contemplate a fair, legal investigation contradictorily between parties to suits of all issues therein raised; but, wherever they are properly in Court, tho law exacts from them vigilant attention to every progressive step in a suit; and this for the very palpable reasons, that neglect of one suitor cannot be allowed to tho prejudice of another.
Sharp practice our Courts will not tolerate; but they will not confound this with an active legal prosecution, unopposed, of the remedies which the law affords, indiscriminately, to all suitors.
If the plaintiff is injured by the judgment complained of, the blame cannot be attributable to his opponent; and he ean hardly expect that even a Court of equity can take better care of him than he has chosen in the matter he opposes to take of himself.
The judgment of nullity in this suit, rendered by the District Court in favor of the defendant, Mestier, must be affirmed.
It is therefore ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby affirmed, the costs of appeal to be paid by the appellant.