
    No. 3174.
    Mary V. Price, for Herself and as Tutrix v. Sarah P. Cummings and James Cummings.
    'Tlie judgment rendered in the court below, without the question of jurisdiction having been raised, is no bar to the action of nullity before the same court for the want of jurisdiction. Hor can the dismissal of the appeal by the Supreme Court for want of jurisdiction be urged as res judicata, against the action of nullity in the lower court for want of jurisdiction there.
    APPEAL from the Ninth Judicial District, parish of Rapides.
    
      Osborn, J. H. 8. Losee, for plaintiff and appellant.
    
      It. A. Hunter, for defendants and appellees.
   Taliaferro, J.

This is an action to annul a judgment rendered in an injunction suit, brought in the district court for the parish of Rapides in 1869 by the defendant, Sarah P. Cummings, to restrain the sale of certain lands upon which the plaintiff in the injunction suit alleged she was entitled to establish a homestead right. The ground upon which the plaintiff prays the judgment rendered in the injunction suit may be annulled, is, that the amount involved is less than five hundred dollars and, therefore, that the district court which rendered the judgment, was without jurisdiction. The defendant excepted to the petition on the grounds that, a judgment having been rendered in the injunction suit, on the same cause of action, between the same parties, and the present plaintiff having appealed to the Supreme •Court, and her appeal being dismissed, the matters in controversy became res juclieatw; and that the plaintiff alleges in this action causes of nullity which she might have set up in her defense in the injunction suit.

The exceptions were sustained by the court below and the suit dismissed, and from this judgment of dismissal the plaintiff appeals.

There is a motion to dismiss on the same grounds that were set up in the lower court. We do not concur with the judge a quo that the defendant can successfully set up the plea of res judicata. The appeal, taken by the present plaintiff as defendant in the injunction suit, was dismissed by this court on the ground of want of jurisdiction, the amount in controversy not exceeding five hundred dollars. In the' injunction suit the question of the jurisdiction of the district court was not raised. The nullity of the judgment on that ground is. the subject matter of the present suit. If the defendant in.injunction had excepted to the jurisdiction of the district court and judgment had been rendered, as it was, against her, she clearly would have had the-right to her action to annul. The fact that she appealed and the appeal was dismissed for want of jurisdiction in this court, places her in no worse position. We think the court erred in sustaining the exception.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that this case be remanded to the court of the first instance,, to be proceeded with according to law, the defendant and appellee paying costs of the appeal.  