
    No. 7585.
    E. Conery, Gallagher, Subrogee, vs Rotchford, Brown & Co.
    An agent has no power to bind a ■firm, or the members thereof, by a confession of judgment where no attempt was made, at the time the judgment was thus obtained, to prove Ills agency.
    An agent of a firm, even if his power had been proved, could not, by a confession of judgment-bind the individual ipembers thereof.
    This judgment is therefore an absolute nullity, which can he set up by the firm, as well as the members who were not cited, in an action to revive.
    A judgment cannot he revived which never existed.
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.
    
      Merrick, Face & Foster, for Defendants and Appellees :
    1. The death of a partner dissolves the partnership, as, also, does the expiration of the term.
    2. The breaking up and utter annihilation of the business of a firm dissolves the partnership.
    3. Parties who are alien enemies cannot he cited, in justice, in the country to which they are alien enemies, in their absence, respecting the affairs of the partnership.
    
      4.A clerk, the alien enemy of liis principals, who abandons his employers during the time of war and takes employment in another house, thereby revokes all his powers as agent, and once revoked, he cannot by any .subsequent act of his own renew them.
    0. The war also, in general, revokes the contract of agency, except, perhaps, so far ash respects those things which may be. doue by a negotiorum, gestor.
    
    
      •Tno. -If. Bonner, Miller, Finney cf; Miller, for Plaintiff and Appellant:
    1. Tlie judgment sought to be revived was rendered against “the defendants, Botchford, Brown J Go., a eonmercictl firm of this city, composed of Shepherd Brown, Joseph JL. Johnson and Bhilip Botchford, in solido,” being both against the juridical being, the partnership, and the individual members thereof.
    2. The allegations of the petition, and their admission by the answer of the defendants through their duly authorised agent, R. A. Bourke, fully justify and warrant the judgment as rendered.
    The cause of action, as sot forth in the petition, was “that Shepherd Brown, Joseph H. Johnson and Philip Rotcbford. composing the firm of Rotcbford, Brown & Co , domiciled in this city, and doing a commercial business under said style, are indebted, in solido,” to petitioner, as the holder and owner of four certain promissory notes made to the order of, and endorsed by, Rotcbford, Brown & Co., on which demand, protest and notice of protest had been waived, and which notes were annexed to and made a part of the petition. The petition, therefore, exhibited a two-fold obligation, viz: one involving the juridical being, the partnership 5 and the other, the solidary liability of the individual members of the partnership.
    
      The voluntary appearance qf the defendant, through their duly authorized agent, stood in lieu of citation, and dispensed with citation. C. P. Art. 206.
    3. This judgment is regular inform, and is certainly not an absolute nullity. “Nullities which'are not absolute, but relative, cannot be invoked in this proceeding. Whatever he the force of a judgment, not absolutely null, and however irregularly rendered, the party mi* (crested is entitled to kaveiU'evived.” Rolger & Son vs. Slaughter efc al,, 33 An, 342; 30 An. 1330 ; 31 An. 326 ; 29 An. 69.
    4. At the time the original judgment was rendered, Bourke was ignorant of tlie death of Johnson, and his authority to appearand confess judgment for the firm still subsisted. R. C. C. 3032 and 3033.
    5. Under the original and. modified agreement of partnership, the death of Johnson did. not dissolve the partnership, and did not, therefore, revoke the power of attorney held by Bourke. R. O. C. 2882.
    6. The burden of proof is on the defendants to show cause why this judgment should not be revived. Plaintiff is not bound to exhibit a judgment that is free from any sort of attack in order to have it revived. The statute reads: “ Any one interested in any judgment may have the same revived at any time before it is prescribed, unless the defendant or his representative SHOW good came why the judgment should not be revived.”
    We do not ask your Honors to validate this judgment in any way. All we ask is to arrest the running of prescription, by having it revived “ with all its defects upon its head.”
    “ The judgment of revival does not correct defects in the original judgment; does not impart any additional force to it 5 hut tvhafever it is, or was, in the beginning, merely preserves it and saves it from extinction.” 33 An. 342.
   Tlie opinion of tlie Court was delivered by

Beiuiuoez, C. J,

This is an action to revive a judgment. The case was once already before this Court, hut was remanded, 30 A, 692.

From an adverse judgment on the remandment, the plaintiff has appealed.

The original suit, wherein the judgment sought to he revived was rendered, was upon notes endorsed by Rotchford, Brown & Co. The petition prayed that judgment be rendered against the members of the firm, who wore asked to bo cited individually.

On the written answer of one representing himself as the agent of the defendants,” judgment was rendered against the firm Rotchford, Brown & Co., composed of Shepherd Brown, Joseph H. Johnson and Philip Rotchford.

Within ton years after the rendition of this judgment, the suit to revive it, was instituted, which, now appears for a second time before this Court.

The main defense is, that the judgment sought to be revived is an absolute nullity, and as such cannot be revived.

The record of the suit in which it was rendered, consists merely of the petition, the endorsed notes, with waivers, the answer of R. A. Bourke, appearing and coufossingjudgment as the agent of the defendants, and the judgment rendered thereon and signed.

No evidence of the alleged agency was offered at the time.

It is claimed, however, that on the trial of the suit to revive, that agency was proved, as resulting from a notarial power issued to Bourke by Rotchford, Brown & Co., on the 19th of May, 1858. The evidence establishes that Bourke had no other power audit is not contended that ho had any other. That power, even if introduced in evidence at the time, would not havo justified the confession of Bourke in the name of Rotchford, Brown & Co., who wore not parties to the suit, who had not even been asked to be cited. It did not authorize Bourke to volunteer and confess judgment in the name of Rotchford, Brown & Co., in cases in which they had not even been made parties.

The judgment rendered was not even against the members of the firm. It could not havo been, for the reason that the power of attorney to Bourke was not issued to him by the individual members of the firm, but only by the firm. Such power did not confer on him, in any manner, the right to represent the individual members in that case. 18 A. 336.

The judgment rendered on the answer confessing judgment, is not responsive to the petition. It is not such as could have served as a foundation for any writ of fieri facias.

It is usual in suits against commercial firms, to obtain judgment not only against the firm, but also against each and every member composing it. The members in this case were not cited, and the judgment rendered, is not against them. It is rendered against the firm composed of the members, but it is not against the members.

It is well settled now, that in a suit to revive a judgment, although the defendant be not permitted to attack the judgment sought to be revived, by urging some latent or relative nullities, sucli party is allowed to oppose the revival, but setting up patent or absolute nullities, which show the judgment to be utterly null and void. 30 A. 692, 363; 32 A. 1006.

The judgment sought to be revived, is shown clehrly to be an absolute nullity. The plaintiff seeks to revive that which never had any being. He cannot do so. 33 A. 342, 615 ; 31 A, 326; 30 A. 1330 ; 23 A. 69, 173 j 29 A. 69 ; MeCutcheou vs. Askew, 34 A. ; Levy vs. Calhoun, lb.

This view of the case dispenses us from passing upon the other defenses urged.

It is, therefore, ordered and decreed, that the judgment appealed from be affirmed, with costs.  