
    No. 3548.
    R. Esterbrook and A. Gallier v. Mary E. Gauche.
    This is an action of nullity brought by plaintiffs against a judgment, on the ground that it was rendered against them in the absence of their counsel, in consequence of the omission of the clerk to attach his name as attorney for them on the usual list posted up, wherefore they were deprived of the defense.to which they were entitled. This omission was not attributable to the other litigants or to their counsel. It was merely an error of the clerk.
    In this instance the plaintiifs have mistaken their remedy. The true one was an appeal. Their defense to the suit was, that the tacit or legal mortgage set up against them was not inscribed prior to the first of February, 1870. Belief was therefore attainable by appeal. Consequently an action of nullity will not lie.
    APPEAL from the Seventh District Court, parish of Orleans.
    
      Collects J. G. Schmidt, tor plaintiffs and appellants.
    
      Thomas Gilmore and J. 3. Isley, for defendant and appellee.
   Wtlt, J.

In suit No. 3547 of the docket of this court, John S. and Louisa Skinner sued Wm. C. Sibley to enforce a tacit mortgage on a house and lot in the city of New Orleans, which the latter purchased from John Gauche;

Sibley called the widow and heirs of John Gauche in warranty, and they called in warranty their vendors, B. Esterbrook and A. Gallier. At tiie trial in tile court below the counsel fop Esterbrook and G-allier was not present, because when the case was posted for trial his name was omitted from the list of cases posted for trial that day. He now brings this action of nullity in behalf of his clients to have the judgment which was rendered against them in his absence, revised because they were deprived of a just defense by the omission of the clerk to attach his name as attorney for them to the list at said posting. The court rejected the demand and plaintiffs have appealed.

It is not pretended that the omission .of plaintiff’s counsel’s name from the list posted, was a fault attributable to the other litigants or to their counsel. It was merely an error of the.clerk.

After examining the case we find the plaintiffs have mistaken their remedy. It was an appeal. Their main defense to the suit was that the tacit or legal mortgage set up, was not inscribed prior to the first January, 1870. On this point the evidence is as ample in the original suit as in the present action. Relief was therefore attainable by appeal j consequently, an action of nullity will not lie. 1 R. 523 ; 3 An. 646 ; 6 An. 249 ; 6 An. 799 ; 9 An. 203 ; 14 An. 396 ; 23 An. 146.

Judgment affirmed.

Rehearing refused.  