
    (114 So. 148)
    No. 26766.
    FRANEK v. TURNER.
    July 11, 1927.
    Rehearing Denied Oct. 4, 1927.
    
      (Syllabus by Editorial Staff.)
    
    1. Judgment <&wkey;570( 12) — Dismissal of suit because 5. years elapsed without effort to prosecute held not available as estoppel or res judicata (Civ. Code, art. 3519, as amended by Act No. 107 of 1898).
    In suit to have judgment declared void for •want of jurisdiction, plea of res judicata because dismissal of suit on ground that 5 years elapsed without any steps being taken in prosecution, according to Civ. Code, art. 3519, as amended by Act No. 107 of 1898, held unavailable as estoppel or as basis for plea. .
    2. Judgment <&wkey;4,56(l) — Suit to declare judgment null for want of jurisdiction is not barred by prescription or by silence of party for any time.
    In suit to have judgment and judgment reviving it declared void for want of jurisdiction, pleas of estoppel and prescription held unavailing, since a suit to have such a judgment declared void is not barred by prescription or by silence of party for any length of time.
    3. Judgment <&wkey;l7(3) — Nonresident defendant’s failure to plead to jurisdiction ratione person® held not to subject him to personal liability (Code Prac. art. 163, as amended by Act No. 64 of 1876).
    Where, in suit against nonresident defendant, with prayer for provisional seizure of his property, defendant did not appear and answer; his failure to plead to the jurisdiction of the court ratione person® did not subject him .to personal liability, since judgment, under Code Prac. art. 163, as amended by Act No. 64 of 1876, was operative only on value of property proceeded against.
    4. Judgment @=16 — Generally, defendant sued in court not having jurisdiction over him becomes liable to personal judgment, if, being cited, he does not except.
    Generally, defendant sued in court not having jurisdiction over him personally becomes liable to personal judgment rendered against him, if, being cited personally, he does not except in limine litis to court’s jurisdiction.
    5. Judgment &wkey;>872 — Judgment reviving original judgment held not to make it personal judgment against defendant or alter effect thereof (Civ. Code, art. 3547).
    In suit against nonresident, in which writ of provisional seizure was prayed, and in which personal judgment was rendered, where defendant’s failure to except to court’s" jurisdiction ratione person® did not subject him to personal liability, revival of judgment under Civ. Code, art. 3547, held not to make it a personal judgment against defendant or alter its effect. Thompson, J., dissenting.
    Appeal from Civil District Court, Parish of Orleans; H. C. Cage, Judge.
    Action by Malvin E. Turner against the succession of Joseph Franek. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Theo Cotonio, of New Orleans, for appellant.
    John R. Perez and H. G. McMahon, both of New Orleans, for appellee.
   O’NIELL, C. J.

On the 21st of April, 1913, Joseph Franek, residing in Jefferson parish, Da., brought suit in the civil district court for the parish of Orleans, against Malvin E. Turner, residing in Lake Charles, Calcasieu parish, La. for $2,400 and interest and 10 per cent, attorney’s fee, on a claim for rent of property which Franek had leased to Turner, in the city of New Orleans. Franek alleged in his petition that Turner was a resident of Lake Charles, and the citation was addressed to him there and was served upon him there, personally, by a deputy sheriff of Calcasieu parish. The prayer of the petition was for a provisional seizure of the furniture and effects of Turner in the leased premises, for judgment for the amount claimed,- with recognition of the lessor’s lien on the furniture and effects in the leased premises, and for a sale of the furniture and effects to satisfy the judgment. The defendant did not appear or answer the suit, and,' on the 80th of May, 1913, judgment was taken against him by default, as prayed for. Garnishment proceedings were taken out against third parties in New Orleans, alleged to be indebted to Turner, in 1913 and 1914. Franek died on the 17th of August, 1913, and the widow was appointed administratrix of his succession and prosecuted the garnishment proceedings, but nothing was realized thereby.

In April, 1914, Turner, being yet a resident of Lake Charles, brought suit in the civil district court for the parish of Orleans to have the judgment against him declared null for want of jurisdiction in the court that rendered it. No further action was taken in Turner’s suit for nullity of the judgment, and, in February, 1921, on a rule taken by the administratrix of the succession of Franek, Turner’s suit was adjudged abandoned by the lapse of five years without any steps being-taken in the prosecution of it, and was dismissed, under authority of article 3519 of the Civil Code, as amended by the Act 107 of 1898, p. 155.

On the 3d of May, 1923, the administratrix of the succession of Franek sued to revive the the judgment against Turner, alleging that he was yet domiciled and residing in Lake Charles. The citation was again addressed to him there, and was served upon him there, personally, by a deputy sheriff of the parish of Calcasieu. Turner did not appear or answer the suit, and, on June 28,1923, judgment was taken against him by default. The new judgment against Turner merely decreed that the judgment dated the 30th of May, 1913, and copied in full in the judgment of revival, was thereby revived and given the same force and effect as if rendered on the date of the new judgment.

In October, 1923, Turner, being yet a resident of Lake Charles, brought this suit in the civil district court for the parish of Orleans, to have the judgment dated the 30th of May, 1913, and the judgment reviving it, dated the 28th of June, 1923, declared null for want of jurisdiction in the court that rendered them, and to have both1 judgments canceled. ‘ The administratrix of the succession of Pranek, defendant in this suit, pleaded (1) that Turner’s petition did not show a cause or right of action; (2) that the judgment dismissing Turner’s first suit for nullity of the judgment against him was res judicata; (3) that by his long acquiescence in the proceedings taken against him in the civil district court for the parish of Orleans he was estopped to contest the validity of the proceedings; and (4) that the suit was barred by the prescription of one, three, five and ten years. There was no dispute about the facts which we have stated. The court gave judgment in favor of Turner, declaring both the original judgment dated the 30th of May, 1913, and the judgment reviving it, dated the 28th of June, 1923, null, and ordering them canceled.' The defendant, administratrix of the succession of Pranek, appeals from the decision.

This being a suit by Malvin E. Turner against the Succession of Joseph Pranek, the title given to it seems not to be appropriate; but that is a matter of no importance.

The defendant’s plea of res judicata is not well founded, because the dismissal of a suit on the ground that five years have elapsed without any steps being taken in the prosecution of it, according to article 3519 of the Civil Code, as amended by the Act 107 of 1898, p. 155, does not decide any controversy, and is therefore not available as an estoppel or as the basis for a plea of res judicata, Charbonnet v. State Realty Co., 155 La. 1044, 99 So. 865.

The defendant’s pleas of estoppel and prescription are also .unavailing because a suit to have a judgment declared null ab initio for want of jurisdiction in the court that rendered it is never barred by prescription or by the silence of the party condemned for any length of time.

Article 163 of the Code of Practice, as amended by the Act 64 of 1876, p. 106, declares that, in all cases of provisional seizure or sequestration, the defendant may be sued in the jurisdiction in which the property provisionally seized or sequestered is found, “provided, that all judgments rendered in such eases shall only be operative up to the value of the property proceeded against, and not binding for any excess over the value of the property in personam against the defendant.” In Merchants’ & Farmers’ Bank v. Fisher Lumber Co., 136 La. 860, 67 So. 932, where the suit was brought by the sequestration of property in a parish other than that of the domicile of the defendant, and the latter appeared and released the property on a forthcoming bond, it was said that any judgment that might, have been rendered against the defendant would have been only “operative up to the value of the property proceeded against, and not binding for any excess over the value of the property in personam against the defendant.” In Thompson v. Calcasieu Trust & Savings Bank, 140 La. 264, 72 So. 958, the court again declared that, in cases of provisional seizure or sequestration of property under orders of a court having no jurisdiction over the defendant personally, the court had jurisdiction to render only a judgment in rem, not a judgment in personam. The court said:

“Usually only those actions which have for their object immovable property or property in custodia legis are included among local actions; but by the amendment of 1876 (Act 64, p. 106) to article 163 of the O. P., suits for provisional seizure and sequestration have been included. The general theory of this classification of actions is that the court of the place where the property is situated can more conveniently deal with it, and that in such actions it is the property which, so to speak, is the real, or at any rate the main, defendant. And so we find that by said amendment of 1876 to article 163, C. P., the effect of the judgment in such cases is confined to the property provisionally seized or sequestered. The judgment cannot operate in personam beyond the amount of the property actually seized.”

The defendant contends that Turner, as defendant in the original suit, tacitly subjected himself to personal liability for the judgment prayed for by the plaintiff in that suit, by failing to plead to the jurisdiction of the court ratione personae. As a general rule, a defendant who is sued in a court that has not jurisdiction over him personally becomes liable to have a personal judgment rendered against him if, being cited personally, he does not take exception in limine litis to the jurisdiction of the court. But that rule is not applicable to this case, because the court in which Turner was sued did have jurisdiction over the case, to the extent of the value of the property that was provisionally seized. If he had excepted to the jurisdiction of the court, the plea would have been overruled.- It was not incumbent upon him to plead — or to remind the court — that, according to the act of 1876, amending article 163 of the Code of Practice, the judgment which the court had jurisdiction to render against him would “only be operative up to the value of the property proceeded against, and not binding for any excess over the value of the property in personam against the defendant.”

The fact that the judgment was ^revived,” ^o to speak, by a judgment rendered in a suit in which Turner was again cited personally makes the ease an exceptional one; but there again the defendant could not have avoided by excepting to the jurisdiction of the court. According to article 3547 of the Civil Code, the court that has jurisdiction to revive a judgment — so as to prevent its being extinguished by the prescription of ten years —is the court that rendered the judgment. The effect of the so-called reviving of a judgment, however, is merely to interrupt the prescription and keep the judgment in effect for another ten years. The judgment reviving the original judgment against Turner did not make it any more of a personal judgment against him than it was before, or alter its effect in any way. There was really only the one original judgment against Turner, which, except for the judgment reviving it, would have been extinguished by the prescription of ten years.

The ease was argued and submitted on the assumption — which we accept as true — that the property which was provisionally seized was sold long ago to satisfy the judgment as far as the value of the property so seized could satisfy it, and that the judgment has therefore become functus officio and ought to be canceled if it has no effect as a judgment in personam. Our conclusion is that it is not a judgment in personam, and that therefore the judgment appealed from, ordering it canceled, is correct.

The judgment is affirmed.

THOMPSON, J.

(dissenting). Our predecessors, in Phipps v. Snodgrass, 31 La. Ann. 88, expressly repudiated the prior jurisprudence to the effect that a plea to the jurisdiction ratione personae could be made at any time before judgment and was good cause to annul after final judgment in the case.

The ruling in the Phipps Case has been uniformly and consistently adhered to until the present case, wherein the court in effect returns to the former jurisprudence for no reason whatever except that plaintiff coupled with his demand for personal judgment' a claim for a privilege on certain property and a prayer for a provisional seizure of such property, which ancillary remedy it is said rendered the court incompetent to render a personal judgment under Act 64 of 1876.

Article 93, Code of Practice, declares that, if one be cited before a judge whose jurisdiction does not extend to the place of his domicile, or of usual residence, but who is competent to decide the cause brought before him, and he pleaded to the merit, instead of declining the jurisdiction, the judgment given shall be valid, • except the defendant be a minor.

It is not denied, and cannot be successfully, that under this article of the Code the court has repeatedly held that a plea to the merits by a person other than a minor waives want of jurisdiction ratione person®. Stevenson v. Whitney, 33 La. Ann. 658; Jex v. Keary, 18 La. Ann. 81; Marqueze v. Le Blanc, 29 La. Ann. 195; and the Phipps Case, supra.

In Carroll v. Bancker, 43 La. Ann. 1195, 10 So. 187, the court said:

“It is permissible, under the law and jurisprudence for a citizen of a parish different from the one in which he is cited, to appear and answer to the merits, and, by thus voluntarily submitting himself to the jurisdiction of the court, the judgment thereon rendered is not coram non judice.”

A failure to answer when personally cited in a court other than the one’s domicile, and suffering judgment in personam to be rendered, has the same force and effect as the joining of issue by answer without excepting to the jurisdiction of the court.

A judgment by default is a tacit joinder of issue, and thereafter the defendant is precluded from raising the question of jurisdiction ratione person®.

“Simplified, the objection is to the effect of a citation, and, it being defective and insufficient, •the court was without jurisdiction ratione person®. It has been the uniform and consistent jurisprudence of this court, since Phipps v. Snodgrass, 31 [La.] Ann. 88, that such an objection must be formally taken in limine, and by way of exception and passed on by the court before answer is filed.” Gomila v. Milliken, 41 La. Ann. 118, 5 So. 549.
“A plea to the jurisdiction of the court ratione person®, must be made in limine. It is too late to file it after a judgment by default has been entered.” Phipps v. Snodgrass, 31 La. Ann. 88.

See long list of eases cited in Phipps Oase, supra.

In the case of West v. Lehmer, 115 La. 214, 38 So. 969, the court said:

“After joinder of issue by judgment by default an exception to the jurisdiction of the court ratione person® comes too late.”

If a party defendant cannot except to the jurisdiction ratione person® after he has suffered judgment by default to be entered against him, it is a strange doctrine, it seems to me, to hold that he can sue to annul after final judgment on the ground of want of such jurisdiction. Yet that is just what the court holds in this case.

The opinion herein seems to recognize the general rule that a person who is sued in a court that has not jurisdiction over him personally becomes liable to have a personal judgment rendered against him, if, being cited personally, he does not take exception in limine to the jurisdiction of the court, but the reason by the court why that rule is not applicable here is because the court in which the suit was brought did have jurisdiction to the extent of the value of the property provisionally seized.

I confess my inability to comprehend the logic of the reasoning.

The court had jurisdiction ratione materise independent of the claim of privilege or the seizure of the property. The demand was for $2,400 and 10 per cent, attorney fees, which certainly gave the court jurisdiction ratione materise.

■ And the court says, if defendant had excepted to the jurisdiction, the plea would have been overruled. But that cannot be so.

If defendant had excepted ratione materise, of course the plea would have been overruled, because the court was competent both because the amount was within the jurisdiction of the court and a priviledge was claimed on certain property within that jurisdiction. It was not necessary to have the property seized in order to give the court jurisdiction.

If however, a plea ratione personse had been filed, the court would have been bound to sustain it and to have declined to give a judgment in personam.

The court in its opinon says that it was not incumbent on defendant to plead or to remind the court that it could not render a judgment against him personally.

Here the court has raised the question of jurisdiction ratione personse to the dignity of jurisdiction ratione materise, and placed upon the court the duty to notice expropria motu its want of jurisdiction ratione personse, a right and privilege which defendant failed to claim.

The court by so ruling has overruled the entire jurisprudence of this state relating to the waiver of the right to plead want of jurisdiction ratione personse after answer has been filed or after judgment by default has been rendered.

The defendant was cited to answer in the court of New Orleans. The demand against him was for a personal judgment. He failed to answer, and judgment by default was confirmed against him. He thereafter recognized this personal judgment against him by going into the court which rendered it and demanded its nullity. He abandoned that suit by failure to take any action towards its prosecution during a period of five years.

As the plaintiff’s judgment was about to prescribe, he sued to revive it, not as a judgment in rem, because there was no such judgment — the property seized had been sold and the judgment in rem, if there had been such a judgment, had ceased to exist, 'and hence could not be revived.

The citation issued to defendant and was served upon him in person. By that suit he was called upon to show cause why the judgment which on its face was in personam for a definite and fixed amount should not be revived and given a continued period of existence against him.

The defendant again made.no appearance, and judgment reviving the judgment in personam was rendered.

Now after so long a time the defendant comes in and asks the court to set aside both the original judgment and the one of revival because the court had not jurisdiction to rener a personal judgment — a ground he could not have urged after default, and before the judgment was rendered, as repeatedly held by this court.

It has always been regarded as settled law and jurisprudence, and has never been disputed so far as I know, that a party who proceeds in rem and seizes the property of his absentee debtor may obtain in that proceeding a personal judgment for the amount of his claim, if he finds his debtor in the state even temporarily and can get personal service of citation on him. But, under the doctrine now announced, the court in such a case, though having jurisdiction ratione materise because of the seizure of property, would be compelled to notice expropria motu that defendant was a nonresident and decline to give personal judgment against him. If there ever was a case in which the defendant has waived the right to plead the want of jurisdiction ratione personae and submitted himself to the court which'rendered judgment in person against him, that case is presented here.

Eor these reasons, I diss.ent from the opinion and decree herein rendered.  