
    No. 1243.
    Ozite Theriot, wife of Felix Potier, vs. Baron Bayard.
    A court having probate jurisdiction is competent to homologate an account voluntarily rendered, by a tutor to his ward, suing tor such, although such tutor be domiciled beyond ibs territorial boundaries.
    That court may also find and render a money judgment in favor of the ward against such tutor, a»nd is competent to revive such judgment, although the tutor continues so to he domiciled.
    If the tutor had aright to «except to the petition, of the ward claiming an account on the ground of his having his domicile^out of the jurisdiction of the court, he should have done so before judgment. Having then failed to urge it, he cannot raise it as a defense to the proceeding to revive.
    A PPE AL from the Twenty-first District Court, Parish of St. Martin. il Gates, J.
    
      Felix VoorMes for Plaintiff and Appellee :
    1. The proper form in which to bring an action for tho revival of a judgment is that in which the judgment was rendered, 23 Ann. 594; 28 Aun. 8G9.
    2. In a suit of revival of judgment, the defendant cannot raise any defense short of the absolute nullity of the original judgment. 34 Ann. 340.
    3. Parish courts, as courts of probate, had unlimited jurisdiction in all probate matters. C. P. 127,123, 922, 923, 924, et ala.
    4. The action to compel tutor to account is essentially a probate proceeding, and the court which has appointed him has alone the power to supervise his acts as tutor and to compel him to account. C.P.997,998; C. C. 337. A party against whom a judgment has been rende* ed in the court of his oiun, selection, on citation issued at his request, on the evidence tendered by him, cannot plead its nullity on the ground that it has no jurisdiction rationcepersonce as to him if in other respects that oourt has competency to try the subject matter. 31 Ann. 89; C-P. 03.
    
      Fobt. S. Ferry for Defendant and Appellant:
    The court having jurisdiction of tho place of residence or domicile of the minor alone has jurisdiction over the tutorship, or of any of its incidents, and the account of tutorship can be rendered alone to that court. This has become a rule of property. O. C.39; C • P. 944, 945, 924; 23 Ann. G93 ; 12 Ann GO; 14 L. 473; 2 It. 160, 420 ; 3 K. 303; 5 H. S. 624; 5 Ann - 565; 13 Ann. 265; 14 Ann. 565 ; 9 it. 499; 32 Ann. 1037.
    Tho jurisdiction is of the subject matter, and is exclusive. It oannot be waived by the ward nor by the tutor. hTor can it be assumed by any court whidli has it not under the law. C. P. 92; 29 Ann. 237; 21 Ann. 662.
    The resulting absolute nullity may be pleaded in answer to a suit to revive a judgment. 21 Ann. 662; 30 Ann. 364, 692; 32 Ann. 1006; 33 Ann. 341; 34 Ann. 340, 413.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit to revive a judgment.

The defense is an exception to the jurisdiction and, further, that the court which rendered the judgment was wholly incompetent and that the judgment is an absolute nullity,

From an adverse judgment the defendant appeals.

Tlie facts are that Charles Theriot, plaintiff’s father, having died in 1857, in the parish of St. Martin, the place of his domicile, his succession was there opened, administered upon and settled; and that the defendant, who then was domiciled in the parish of St. Mary, and has not since changed his domicile, was appointed tutor to the plaintiff and qualified as such.

On her attaining the age of majority she brought proceedings, in June, 1866, against her tutor for an account before the district court of St. Martin, which had succeeded the parish court, by whom the judgment had been rendered. In September following- he voluntarily complied with the demand and rendered an account, which was opposed by the plaintiff, and, after considerable litigation, homologated long after, April, 1876, the court amending the account in some respects and decreeing plaintiff entitled to recover $7505 from the accountant, with legal interest till paid. This judgment was never appealed from. The present suit, brought in March, 1885, before the district court of St. Martin, has for its object to revive it.

I.

The exception to the jurisdiction of the district court over the defendant, who is not domiciled within its territorial limits, appears to have been abandoned, for defendant’s coimsol frankly admits that if the court that rendered the judgment on the account has jurisdiction, the present action has been instituted in the proper forum. The determination of the question of such jurisdiction is therefore contingent upon the decision of that of the court which homologated the account, ■which will solve the preliminary defense in this case. We shall now proceed to consider it.

II.

It is settled that the object of a proceeding to revive a judgment is merely to keep the judgment in force by interrupting prescription, which otherwise would terminate its existence, matters and things remaining otherwise in statu quo, just as if the statute of prescription had never been enacted.

Although it has been held that in such suit no plea or evidence assailing its validity could be entertained, this Court has recognized in the defendant'the right to set up and establish the absolute nullity or extinction of the original judgment, as when the court was incompetent, or when, not being such, the judgment had been rendered by default and without citation, or when it has been extinguished in any of the ways provided by law. 30 Ann. 1330; 31 Ann. 326 ; 29 Ann. 69; 33 Ann. 342,340, 413, 1296-1301.

In the case of Folger vs. Slaughter, 33 Ann. 342, the Court, however, distinctly said : “Nullities which are not absolute, but relative, cannot be invoiced in such proceeding.” This means causes of nullity which were personal, which could have been pleaded and were not set up. See 31 Ann. 39; 33 Ann. 1301.

In the present instance it cannot be claimed, nor is it, that the court which rendered the judgment of homologation was incompetent ratione materia, for it clearly had probate jurisdiction. It could legally entertain a suit by a minor, become of ago, agaiust a tutor for the rendition of an account of his administration, and it could adjust the differences, if any, between them.

The contention is that the court was incompetent, because the tutor from whom the account was asked was domiciled beyond its jurisdiction ; that he could not have been cited and compelled to render the account, and that the judgment in favor of plaintiff is therefore a nullity.

If it be true that the defendant could have then excepted to the jurisdiction of the court calling for tho account, it was a defense personal to himself, which he could have set up or waived, at his pleasure. He elected not to avail himself of it, and has abandoned it. The relinquishment of that right has inured to the benefit of the minor of age, who cannot now be divested of the advantage derived from it. Had execution issued on that judgment against the defendant, he could not have enjoined it on the ground now urged, because be cannot be permitted to setup after judgment defenses which he could have raised before judgment.

Defendant contends specially that by virtue of Act 208 of 1868, which exceded from the parish of St. Mary that portion of it in which he was domiciled and added it to tho parish of Iberia, the district court was bylaw divested of all jurisdiction over the suit for an account instituted by plaintiff in 1866.

This was probably so. The defendant then could, when the contestation on the account was taken up for trial, have objected and demanded the transfer of the record to the district court of Iberia (33 Ann. 1301); but he did not do so on April 22, 1876, when the case was called up and decided.

The divestiture of jurisdiction, in a case like this, was for his benefit, and he could legitimately and legally waive it if he deemed advisable He freely acquiesced to the authority and competency of the court, and cannot now be listened to complain when the same court undertakes to revive the judgment homologating the account, and charge that it had no jurisdiction to render that judgment.

When the court passed upon the differences of the parties in relation to the account, the case stood before it in the same condition that it would have been in had the accountant actually been domiciled within its territorial boundaries.

The judgment is amenable to no charge'whatever of nullity on the ground of jurisdiction, either absolute or relative. The defense is therefore without merit.

The decision of this point carries with it that of the preliminary defense, to the jurisdiction iu the present action.

The appellee has prayed for damages for a frivolous appeal, but we do not consider that this is a case in which any should be allowed.

Judgment affirmed.  