The opinion of the Court was delivered by
Todd, J.
This is an action to revive a judgment rendered in the Fifth District Court of the Parish of Orleans on the 20th February, 1872. The suit in which the judgment sought to he revived was rendered, was an injunction suit in which an order of seizure and sale, taken out in the District Court of the Parish of Plaquemines by the defendant, James E. Zunts, against a plantation in that parish, was enjoined by W. Si H. Stackhouse, the owners of the plantation.
The debt for which the order issued was, in capital, $50,000, and upon final trial the injunction was dissolved, with twenty per cent dam[531]*531ages. This is tlie judgment involved in this suit. It is brought against the administrator of the succession of Haywood Stackhouse, who died during the pendency of the original litigation, and his surviving widow; and also against the assignee of William Stackhouse, who, during the course of said proceedings in the first suit, surrendered in bankruptcy.
The revival of the judgment is resisted on the ground that the original judgment was an absolute nullity for several causes assigned, and which we will proceed to consider in their order:
1. It is urged that the court which rendered' the judgment was without jurisdiction. As stated, the order of seizure and sale issued from the District Court of Plaquemines, and the injunction suit against it was instituted in the same court. After being filed, it was transferred by consent of the parties thereto to the Fifth District Court of the Parish of Orleans. This latter court liad jurisdiction over the subject-matter of the suit, and in this important respect -was a competent tribunal to try the case. Whatever may have been the tenor of the earlier decisions to which we are referred as to the effect of a waiver of the jurisdiction as to persons, it suffices to say that they have been expressly overruled by the later ones; and it is now the settled jurisprudence that parties may by consent waive personal jurisdiction and submit their controversy to the determination of another tribunal than that of their domicile, having jurisdiction over the subject-matter, and that this latter becomes thereby vested with complete jurisdiction over the cause. 29 A. 194; 31 A. 88; 30 A. 59; 33 Á.655.
The proceedings and judgment were not, therefore, void for this cause.
2. It is next urged that the final proceedings were conducted in the said Fifth District Court and judgment therein rendered, after the death of Haywood Stackhouse, and that neither his succession nor heirs were represented in said court.
This necessitates a brief history of the suit. Its institution in the parish of Plaquemines and its subsequent transfer to the Fifth District Court of New Orleans has been mentioned. After its transfer thereto, it was twice tried in the said Fifth District Court. From the first judg - ment there was an appeal to the Supreme Court. Whilst pending there, Haywood Stackhouse died. His death was suggested and an order entered making his heirs — who wore his children — parties thereto. One of them was a major and the rest minors, purporting-to bo represented by their mother and natural tutrix. It does not appear from the record that this order was served, but from the secondary evidence [532]*532supplying the loss of the papers, we are satisfied that service of the order was duly made. In the further proceedings in the Supreme Court, these representatives of Haywood Stackhouse, deceased, appeared by counsel. The appeal resulted in a reversal of the judgment and a remanding of the case to the lower court for another trial. This trial was had, and the heirs purport to have been represented therein by the same counsel who had appeared for them in. the Supreme Court and procured the reversal of the judgment. This second trial in the district court resulted in a judgment in favor of the defendant, Zuntz, dissolving the injunction, with damages; and this is the judgment before referred to and now sought to be revived.
From this judgment a second appeal was taken to the Supreme Court. The appeal bond was signed by the heir of age, assisted by her husband, and the tutrix of the minors. Couns.el also appeared for the parties in the Supreme Court on this second appeal. The judgment of the district court was, in this instance, affirmed; and an application for a. rehearing — which set up the same grounds of nullity against the proceedings mentioned above and that we are now considering — was made and refused.
It is contended that after the case was remanded for another or second trial in the district court, no order of revival and no formal appearance was entered for those that had been previously made parties in the Supreme Court. Such an entry would have been more regular; but considering that an appearance was made in that Court by the same counsel who had been previously conducting the proceedings, and that the order of appeal was taken in behalf of these representatives of the deceased, and the appeal bond was signed by them in person as stated; and furthermore, as the proceedings appear regular upon their face, we cannot conclude that the omission referred to was absolutely fatal, to their validity and to that of the judgment.
3. The next ground of nullity alleged, is, that the mother and acting tutrix of the minor heirs was without authority to represent them, and in fact that her confirmation as tutrix was absolutely null, for this reason, that no abstract of the inventory of their estate had been recorded in the book cf mortgages, prior to the order of the judge confirming her as natural tutrix.
The oyder, in question, is regular on its face, letters of tutorship were issued to her, under authority of which she acted in these proceedings and also in other proceedings relating to the interests of the minors. The matter of appointment or confirmation of the tutrix was clearly [533]*533within the power and jurisdiction of tlie judge making it, and the required abstract was recorded within a few days after the date of a second order of confirmation or appointment.
It is true that the language of article 321, of the Code, seems to be imperative in requiring that this abstract must be made out by the clerk and duly recorded, and the certificate of the recorder to the fact of its record, presented "before the judge makes the appointment. This article is, in part, an embodiment of Act 95, of 1869; and if the article stood alone it would give great plausibility to the pretensions of defendant’s counsel; but it does not stand alone, and should properly be construed in conjunction with article 304, of the Code. This last article provides, among other causes for the removal of a natural tutor, his neglect to have this inventory made and recorded at the time or within the period prescribed by law — that is, as we construe it, as required by the article first above cited.
A tutor could not be removed unless he had first been appointed; and if his appointment, under the circumstances appearing in the instant case, was absolutely null, then there was really no appointment made and no tutor who could be removed. In other words, the provision for the removal of the tutor in such case, precludes the idea that the order appointing him was wholly inoperative and absolutely void. Whatever the counsel may suggest as to the way or means by which this article became inserted in the Code, by the act adopting it as revived it became as much a part of the Code as any other article therein.
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The opinion of the Court was delivered by
Todd, J.
This is an action to revive a judgment rendered in the Fifth District Court of the Parish of Orleans on the 20th February, 1872. The suit in which the judgment sought to he revived was rendered, was an injunction suit in which an order of seizure and sale, taken out in the District Court of the Parish of Plaquemines by the defendant, James E. Zunts, against a plantation in that parish, was enjoined by W. Si H. Stackhouse, the owners of the plantation.
The debt for which the order issued was, in capital, $50,000, and upon final trial the injunction was dissolved, with twenty per cent dam[531]*531ages. This is tlie judgment involved in this suit. It is brought against the administrator of the succession of Haywood Stackhouse, who died during the pendency of the original litigation, and his surviving widow; and also against the assignee of William Stackhouse, who, during the course of said proceedings in the first suit, surrendered in bankruptcy.
The revival of the judgment is resisted on the ground that the original judgment was an absolute nullity for several causes assigned, and which we will proceed to consider in their order:
1. It is urged that the court which rendered' the judgment was without jurisdiction. As stated, the order of seizure and sale issued from the District Court of Plaquemines, and the injunction suit against it was instituted in the same court. After being filed, it was transferred by consent of the parties thereto to the Fifth District Court of the Parish of Orleans. This latter court liad jurisdiction over the subject-matter of the suit, and in this important respect -was a competent tribunal to try the case. Whatever may have been the tenor of the earlier decisions to which we are referred as to the effect of a waiver of the jurisdiction as to persons, it suffices to say that they have been expressly overruled by the later ones; and it is now the settled jurisprudence that parties may by consent waive personal jurisdiction and submit their controversy to the determination of another tribunal than that of their domicile, having jurisdiction over the subject-matter, and that this latter becomes thereby vested with complete jurisdiction over the cause. 29 A. 194; 31 A. 88; 30 A. 59; 33 Á.655.
The proceedings and judgment were not, therefore, void for this cause.
2. It is next urged that the final proceedings were conducted in the said Fifth District Court and judgment therein rendered, after the death of Haywood Stackhouse, and that neither his succession nor heirs were represented in said court.
This necessitates a brief history of the suit. Its institution in the parish of Plaquemines and its subsequent transfer to the Fifth District Court of New Orleans has been mentioned. After its transfer thereto, it was twice tried in the said Fifth District Court. From the first judg - ment there was an appeal to the Supreme Court. Whilst pending there, Haywood Stackhouse died. His death was suggested and an order entered making his heirs — who wore his children — parties thereto. One of them was a major and the rest minors, purporting-to bo represented by their mother and natural tutrix. It does not appear from the record that this order was served, but from the secondary evidence [532]*532supplying the loss of the papers, we are satisfied that service of the order was duly made. In the further proceedings in the Supreme Court, these representatives of Haywood Stackhouse, deceased, appeared by counsel. The appeal resulted in a reversal of the judgment and a remanding of the case to the lower court for another trial. This trial was had, and the heirs purport to have been represented therein by the same counsel who had appeared for them in. the Supreme Court and procured the reversal of the judgment. This second trial in the district court resulted in a judgment in favor of the defendant, Zuntz, dissolving the injunction, with damages; and this is the judgment before referred to and now sought to be revived.
From this judgment a second appeal was taken to the Supreme Court. The appeal bond was signed by the heir of age, assisted by her husband, and the tutrix of the minors. Couns.el also appeared for the parties in the Supreme Court on this second appeal. The judgment of the district court was, in this instance, affirmed; and an application for a. rehearing — which set up the same grounds of nullity against the proceedings mentioned above and that we are now considering — was made and refused.
It is contended that after the case was remanded for another or second trial in the district court, no order of revival and no formal appearance was entered for those that had been previously made parties in the Supreme Court. Such an entry would have been more regular; but considering that an appearance was made in that Court by the same counsel who had been previously conducting the proceedings, and that the order of appeal was taken in behalf of these representatives of the deceased, and the appeal bond was signed by them in person as stated; and furthermore, as the proceedings appear regular upon their face, we cannot conclude that the omission referred to was absolutely fatal, to their validity and to that of the judgment.
3. The next ground of nullity alleged, is, that the mother and acting tutrix of the minor heirs was without authority to represent them, and in fact that her confirmation as tutrix was absolutely null, for this reason, that no abstract of the inventory of their estate had been recorded in the book cf mortgages, prior to the order of the judge confirming her as natural tutrix.
The oyder, in question, is regular on its face, letters of tutorship were issued to her, under authority of which she acted in these proceedings and also in other proceedings relating to the interests of the minors. The matter of appointment or confirmation of the tutrix was clearly [533]*533within the power and jurisdiction of tlie judge making it, and the required abstract was recorded within a few days after the date of a second order of confirmation or appointment.
It is true that the language of article 321, of the Code, seems to be imperative in requiring that this abstract must be made out by the clerk and duly recorded, and the certificate of the recorder to the fact of its record, presented "before the judge makes the appointment. This article is, in part, an embodiment of Act 95, of 1869; and if the article stood alone it would give great plausibility to the pretensions of defendant’s counsel; but it does not stand alone, and should properly be construed in conjunction with article 304, of the Code. This last article provides, among other causes for the removal of a natural tutor, his neglect to have this inventory made and recorded at the time or within the period prescribed by law — that is, as we construe it, as required by the article first above cited.
A tutor could not be removed unless he had first been appointed; and if his appointment, under the circumstances appearing in the instant case, was absolutely null, then there was really no appointment made and no tutor who could be removed. In other words, the provision for the removal of the tutor in such case, precludes the idea that the order appointing him was wholly inoperative and absolutely void. Whatever the counsel may suggest as to the way or means by which this article became inserted in the Code, by the act adopting it as revived it became as much a part of the Code as any other article therein.
Besides, it may be well to state in this connection, that as a general rule absolute nullities in judicial proceedings are such as result from radical defects, omissions and irregularities, appearing on the face of the record and are not dependent on matters en pais to be established by evidence aliunde.
As has been stated in previous decisions on this subject, the law providing for the revival of judgments, did not intend to prescribe another method or way of annulling them; and, on the other hand, whatever may be their defects when rendered originally, the judgment of revival does not cure them. It merely preserves the judgment with whatever of strength or weakness it originally possessed; and the action to revive can only bo successfully resisted by showing that, owing to nullities of so absolute a character, there never, in fact, existed or was rendered, a judgment to be revived.
4. In addition to the above, the assignee in bankruptcy. of William Stackhouse interposes the discharge of the bankrupt against the revival
[534]*534of the judgment against Mm. TMs action is not intended to impose or renew any liability against the bankrupt, from which he has been discharged. The assignee is the sole representative of the bankrupt’s estate, and it may be that the judgment confers some right upon or against that estate, though the bankrupt may have been discharged from personal responsibility. We think the assignee was properly made a party to the action, and the only one that could represent the bankrupt debtor or Ms estate. The law accords to the judgment creditor the right to revive his judgment, and this right he possesses even if it is not accompanied with the right to execute or enforce it against the bankrupt; and he cannot be deprived of this right by the bankruptcy of the debtor. The judgment may still exist although the personal obligation of the debtor, which it imparts, may be extinguished or at least discharged. Alter vs. Nelson, 27 A. 242; Grayson vs. Norton, decided at Monroe, in 1878, and unreported; Wheeless vs. Fisk, 28 A. 731.
It is also urged that Stackhouse was adjudicated a bankrupt during the pendency of the case in the Supreme Court, but that his assignee was not made a party. The counsel is mistaken, the judgment became final in said Court on the 1st December, 1873, and-the adjudication referred to, took place on the 27th of December, same year.
Our conclusion is that the lower court erred in dismissing the action.
It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered, it is now ordered, adjudged and decreed that the judgment rendered and signed on the 5th of March, 1872, in the late Fifth District Court of the parish of Orleans, in a case entitled W. & H. Stackhouse vs. James E. Zuntz, as set forth and described in the petition, be and the same is hereby revived.
Appellees to pay costs of both courts.