
    No. 7839.
    Mrs. Annie Huyghe vs. Henry Brinkman.
    A judgment of ejectment of a party as tenant "by a Justice Court 'will not sustain the exception of res judicata in an action by tbe party ejected, for possession as owner of tbe same premises.
    APPEAL from the Fifth District Court for the Parish of Orleans. Sogers, J.
    
      
      J. 0. Nixon, Jr., for Plaintiff and Appellant.
    
      Bayne & Bendyre, for Defendant and Appellee.
   The opinion of the Court was delivered by

Poci-ié, J.

Plaintiff appeals from a judgment maintaining an exception of res judicata to her possessory action, as owner of an immovable'property, from which she had been unlawfully evicted. Defendant’s plea is predicated on a judgment by a justice court, in his suit for the expulsion of the plaintiff in this case from the same tract of land, under the allegation that she was his tenant.

It is elementary, that to constitute res judicata, the thing demanded must be the same and the demand must be founded on the same 'cause of action.

The thing demanded in the former case was possession as lessor; the thing demanded in the present case is possession as owner; the cause of the action in the case invoked was the refusal of possession of a tenant to his landlord; the cause of action in the suit at bar is disturbance of possession as owner.

From the very composition of the court which rendered the previous judgment, it is apparent that the question of possession as owner could not be an issue in the cause; and hence it follows that, if such an issue had been presented and adjudicated upon, the judgment rendered would be absolutely null, for -want of jurisdiction ratione materke in the court which had rendered it.

The argument that the right of possession as owner was the defense which Mrs. Huyghe should have urged in the ejectment suit, and that such a point properly belonged to the decision of the cause, falls of its own weight, when met by the fact that the court was without jurisdiction to entertain and pass upon such an issue.

As the issue was not made, it was not decided; if it had been made., it could not have been entertained or decided. Hence, it cannot be considered as an element of the judgment and, therefore, it cannot be invoked as an estoppel to the present action. Thompson vs. Nicholson, 12 R. 327 ; Kling vs. Séjour, 4 An. 128.

Tiie judgment of the lower court is, therefore, annulled and reversed, the exception of res judicata is overruled, and the cause is remanded to the Civil District Court, Parish of Orleans, to be proceeded with according to law, appellee to pay costs.of appeal.

Rehearing refused.  