
    No. 8182.
    George Heroman et al. vs. Louisiana Institute of Deaf and Dumb et al.
    A judgment sought to be annulled cannot be opposed as res adjudicata, to the action of nullity#
    If, however, the only ground alleged for annulling said judgment be error of decision upon the issues involved, the decision upon those issues by a competent court, operates as a conclusive estoppel between the parties before the Court.
    In absence of fraud or collusion minors, properly represented, are bound by a judgment as fully as if they had been majors and personally cited.
    Matters once determined by a court of competent jurisdiction, if the judgment has become final, can never again be called into question by the parties or their privies, though the judgmentmay have been erroneous and liable to certain reversal on appeal.
    This estoppel extends to every material allegation which was at issue in the cause and was therein determined.
    APPEAL from the Seventeenth Judicial District Court, Parish of East Baton Rouge. Sherburne, J.
    
    
      
      Burgess <& Burgess, O. B. Favrot, Favrot & Lemon, for Plaintiffs and Appellants:
    1. A natural tutrix who remarries without convoking a family meeting to advise as to her continuance as tutrix, ipso facto, ceases to be tutrix, and thenceforth she is without power to bind the minor by any acknowledgment, express or implied. 2D An. 802 ; 31 An. 380.
    2. Prescription is not interrupted on a claim against a succession by any process served upon one who has ceased to be tutrix, from having contracted a second marriage without having convoked a family meeting to retain her in the tut >rship. 18 An. 44; 26 An. 370.
    3. A tutrix cannot revive a debt agaiust a minor, which is prescribed.
    4. Prescription on a claim agaiust a succession is interrupted either by citation or its equivalent,, or by an acknowledgment of the claim by the legal representative of the succession, and in no other way. There is no consideration for a contract based on a prescriptive obligation, unless the obligor knew that this obligation -was prescribed, and it is clearly shown that the obligor intended to supply the nullity of the old by the execution of a new contract. Troplong on Pres. vol. 1, pp. 108 to 110; C. C. 2252; B. O. .0. 2272.
    5. In no way can the action of a family meeting be considered as having the effect of the renunciation of a prescription acquired in favor of a minor.
    6. The maxim, contra non valentón atjere ct cet, and the provisions of the Act of Congress of 11th June, 1864, can not be invoked to suspend x)rescription on notes, daring the time the creditor and debtor have both resided within the lines of JToderal occupation, or whore it appears that it was in the power of the creditor to reach the domicile of the debtor, and there institute legal proceedings, and avoid the prescription of his debt. 29 An. 82!); 24 An. 555.
    7. The maxium contra non valentón has no place in our laws ou prescription. The Act of Congress of 11th June, 1864, can not have a retroactive effect. L. D. Pres. V. (a) Nos. 5, 6, 7, 8.
    8. One who has made a judgment one of his grounds of action against others cannot be heard contradictorily with the same persons to assert the nullity of the judgment. 2!) An. 599.
    9. The knowledge of the agent, acquired during and in the course of his employment, is the knowledge of his principal. Story on Agency, 451, 140 ; p. 159.
    10. A judgment rendered against a person dead, and not represented, is an absolute nullity, and may be attacked directly or collaterally, and by any one against whom it is sought to be enforced. 29 An. 647.
    11. Where a part of the heirs are minors, who have accepted with benefit of inventory, and some of the heirs are of age, an administration of the succession is absolutely necessary. O. C. 1047, 1052, 1055; 14 An. 641; 28 An. 859 ; 23 An. 179; 27 An. 351; C. P. 976.
    12. Succession property cannot be sold under a fi. fa 25 An. 154; 27 An. 556.
    13. Property of a succession sold for cash in order to pay the debts of the succession must, at its first offering, bring its full appraised value. If sold for less thau its appraised value, the sale will be invalid.
    14. A family meeting should be composed of the relatives of the minors, who live within thirty miles of the courthouse. The homologatiou of the proceedings of a family meeting, ratifying a compromise involving the interests of minors, will be set aside, when it appears that the lower court, at the date of the homologation, had no evidence before it going to show whether the compromise would injure or benefit the minors. B. C. O. 28Í-282; 2 An. 941; 30 An. 976; 32 An. 97; B. C. C. 240.
    15. In all cases in which the nullity of an agreement is not limited to a shorter period, by a particular law, that action may be brought within ton years.
    Minority suspends prescription. C. C. 2221.
    
      Scvtú. P. GreeveSj for Warrantors and Appellees:
    
      First — Prescription was suspended in favor of a citizen of Missouri and. against a citizen of Louisiana, from April, 1861 to April, 1866. Act of Congress of June 11, 1864, B. S. IT. S. Sec. 1048 ; 11 Wallace, 244, 493; 12 Wallace, 700; 18 Wallace, 151; 93 U. S. Otto, page 96; 24 An. 31, 183; 28 An. 841.
    
      Second — Executory process may issue against the mortgaged property of a decedent in whosoever hands it may be found. C. P. 62, et seg., 734, 744; P. C. C. 1421; 1 An. 205 ¡ 2 An. 509; 20 An. 375; 12 An. 551; 28 An. 622 ; 32 An. 412; 10 La. 490.
    
      Third — -One contracting with a person in ignorance of his incapacity, may call on the party, if the disability has ceased, and then his assent shall confirm the contract. P. C. C. 1794, 1795; 2 An. 727; 6 La. 215.
    
      Fourth — A judgment rendered without legal citation and no appearance of the defendant, and no default previously entered, is an absolute nullity. C. P. 606, 206 ; 30 An 363.
    
      7'ifth — When all the formalties required by law for the alienation of minor’s property have" been fulfilled, the acts made for "those pmposis shall have the same force as if they had been executed by pei sons of full age. P. C. C. 1868, 2231; C. P. 615, 992; 18 Howard, 497; 12 An. 426; 10 La 274; 9 An. 433.
    
      tíi&th — Mrs. Heroman, widow in community, having been authorized thereto hy her husband, purchased at the sale, ratified the same and is concluded.by her own acts from objecting to the validity of the sale, and is estopped from denying the validity of the judgment against her in suit 13 9£, by vol untarlly executing the same. O. P. 567, 612; 24 An. 225; 23 An. 524.
    
      Seventh — Ho suit will lie to recover what has been paid or given in compliance with a natural obligation, and a natural obligation is a sufficient consideration for a now contract. P. C. O.1758, 1759, 2203; C. P. 38.
    
      Eighth — Where a change iu the terms of the sale more favorable to the seized debtor is made, such change will not invalidate the sale; it will be presumed to have been made at the instance of the seized debtor, and he is estopped from contesting it. 13 An. 215; 15 An. 370.
    
      Xinth — A promise or contract that destroys a prescriptive right shall not be avoided by an allegation that the party was ignorant or in errorwith regardtothelawof prescription. P. C. C. 1846.
    
      Tenth — As to the fact that the notes were prescribed no error can be set up, for they were filed in suit 290, and their counsel employed to attack the proceedings had in that suit failed to discover it.
    
      Eleventh — The presciiption of five years covers all informalities connected with or growing out of any public sale, even against minors. P. C. C. 3543; IP. 331; 10 P. 396; 3 An. 328, 546; 14 An. 777; 21 An. 584; 29 An. 534.
    
      Twelfth — If the notes were prescribed, mid Mrs. Donning, tutrix, and John Bonning, co-tutor failed to interpose the plea before the sale, the minors, within four 'years after their majority could have called their tutrix to account for their neglect, but the title of a purchaser at the salo is not affected. Courts cannot supply tlio plea of prescription. P. C. C. 3463, 3464; 19 An. 266; 20 An. 219; 21 An. 395; 12 An. 350; 32 An. 953.
    
      Thirteenth — As against a purchaser in good faith at a judicial sale, the minors must be held at this distant period to have been represented projiorly in the suit, or at least to have ratified the proceedings hy their long silence and acquiescence. 14 An. 157; 15 An. 88.
    
      Merrick & Foster, foi‘ Bird’s Executors, Appellees.
   The opinion of the Court was delivered hy

Poci-ns, J.

Plaintiffs, as heirs of the late George M. Heroman, seek to annul the sale of a valuable piece of property situated in Baton Rouge, formerly owned by their father, and adjudicated at a sheriff’s sale to the executors of John Bird, of Missouri, by whom it was sold to the Trustees of the Louisiana Institute for Deaf and Dumb, now the actual possessors.

The suit is brought against the Trustees of the Institute and against the executors. The latter were called in warranty by the Trustees, an.l in their turn, they called in warranty Mrs. Celestine Bonning, widow G. M. Heroman.

Mrs. Bonning, instead of defending the titles under controversy, joined plaintiffs in assailing their validity and in their prayer to restore the property to the Heroman succession.

The issues ’raised by the pleadings are numerous, and the facts underlying them very complicated.

We state the following as the important features of the controversy :

On the 7th of May, 1856, G. M. Heroman executed in favor of John Bird, of Missouri, his three promissory notes, maturing respectively in one, two and three years, amounting together to $12,000, and secured by mortgage on the property now in litigation.

G. M. Heroman died in 1801, leaving a surviving widow and five minor children, whose mother was qualified as the natural tutrix. In 1863, widow G. M. Heroman married John Bonning, without convoking a family meeting, so as to be retained in the tutorship of her children.

On the 28th of April, 1865, executory process was instituted by John Bird on the three notes held by him, against the “ heirs of Q. 31. Hero-man,” causing the required notices to be served on Mrs. Celestine Bonning, natural tutrix, and John Bonning as tutor of the Heroman minors.

On the 6th of June, 1865, pending the executory process, a family meeting, convoked in behalf of these minors, reinstated Mrs. Bonning to the natural tutorship of her children, “ nunojpro time,” and dispensed her from furnishing the bond required by law.

In a document filed June 10,1865, bearing no date, Mrs. Bonning as tutrix, and John Bonning as co-tutor, acknowledged to have received all the notices required by law, in the executory process instituted as above set forth.

The property thus seized was offered for sale on July 1st, 1865, and for want of a sufficient bid, was re-advertised for sale on a twelvemonths’ bond. It was adjudicated on the 18th of July of that year, for $13,000, to Mrs. Bonning, who, being unable to furnish the required bond, paid $1,000 cash, and executedfor the balance, three notes, maturing in one, two and three years, secured by mortgage and vendor’s lien on the property sold, which settlement was accepted by the seizing creditor.

On the 21st of June, 1866, a family meeting, convoked for the purpose, sought to ratify the purchase of July 18th, 1865, in the interest of the Heroman minors, and to make them liable for the notes executed by their mother.

On the 13th of March, 1867, suit was filed against Mrs. Bonning, personally and as tutrix for her minor children, and against one of the heirs who had become of age, for the purpose of .enforcing payment of the notes executed by Mrs. Bonning on the 18th of July, 1865.

' Judgment was rendered on April 8, 1869, and was executed in September, 1878, resulting in the adjudication of the property for $10,000, to the executors of John Bird, who, in the meantime, had died.

This suit was instituted on the 19th of October, 1879, by four of the five Heroman heirs, who allege the absolute nullity of the proceeding's and the sale made in the executory process issued on April 28th, 1865, and of all the proceedings predicated on, or purporting to ratify, said sale.

The defendant Trustees maintain the legality of their title and that of the Bird executors, their vendors, whom they call in warranty, and in case of eviction, they pray for judgment against their warrantors for $2,500, amount paid them on account of the purchase price, and also for $2,380, amount disbursed by them for improving the property.

For defense, the executors, as defendants and as warrantors, urge the legality of all the proceedings under which they acquired title, and claim that all irregularities, if any, which may have crept in their executory process of April, 1865, have been fully cured by the acts of the family meetings of June, 1865, and of June, 1866, and by the certificate or admission of Mrs. Bonning, tutrix, filed June-10, 1865, and they finally urge, in bar of plaintiff’s recovery, prescription of ten, five, four and one years.

This appeal is prosecuted by plaintiffs from an adverse judgment by the District Judge, who has given no reasons in support of his decree, and thus fails to inform us which of the numerous defenses prevailed in his opinion.

We shall first direct our attention to the validity of the proceedings inaugurated on the 28th of April, 1865, and culminating in the adjudication of the property to Mrs. Bonning.

If those proceedings be found regular, valid and binding, the case is with the defendants, without the necessity of investigating all the subsequent proceedings which were predicated thereon.

If, on the other hand, those proceedings are found to be virtually irregular and illegal, and the sale made on July 18, 1865, be found in consequence an absolute nullity, and not ratified by any of the subsequent proceedings invoked as such, it is evident that plaintiffs have made out their case.

A careful perusal of the statement of the proceedings which we have made above, and which is taken without comment from the record, will expose to the legal mind several wanton violations of the rules of practice absolutely required under our laws; and will disclose the startling fact that the executory process of April 28, 1865, was literally carried on by a plaintiff without defendants.

By contracting her second marriage, without the authorization of a family meeting to retain her as tutrix, Mrs. Bonning was ipso facto removed from the tutorship, (C. C. Art. 254) and had no more authority to represent her children in legal proceedings than any stranger or even plaintiff himself. 32 An. 51 ; 22 A. 21.

It follows, therefore, that the notices served on her as tutrix, and on her husband as co-tutor, had no more legal effect than if served on any stranger or imaginary being.

It is, therefore, safe to conclude that the executory process, as carried on, lacked the notice or demand to pay required by Art. 735 of the Code of Practice, and also the indispensable notice of seizure, and all the other notices required by law.

It has often been held that these notices amount in legal importance to citation in an ordinary process, in default of which all other proceedings, including the judgment, are stricken with absolute and incurable nullity.

It is to be noted that the petition for executory process is absolutely silent on the subject of any interest of Mrs. Bonning in and to the property proceeded against; no process is asked against her personally, and therefore none was served.

These considerations clearly point to the nullity of the sale made under such anomalous proceedings.

But defendants call our attention to the action of the family meeting of June 6, 1865, reinstating Mrs. Bonning, nunc pro tune, in the tutorship of her children, and to her admission that she had received all the notices required by law; and their counsel are seemingly serious in arguing that such proceedings could cure, not only relative nullities, but even an absolute nullity, such as would affect a judgment rendered without citation on the defendant.

That the law which requires the solemn action of a family meeting to restore a mother to the functions of tutorship, which she had forfeited by contracting a second marriage, without complying with the rules of law made conditions precedent to her right of retaining her natural tutorship, does not contemplate that the action of such family meeting may, in any contingency, have a retroactive effect, is an' axiom which cannot be strengthened by reasoning.

The very necessity of the family meeting excludes the idea that its action can retroact so as to legalize acts done without the authority, nay, in contravention of law. The power of the family meeting thus composed could provide only a dative tutorship, and could not reinstate the tutorship by nature.

Defendants next fall back on the action of the family meeting held on the 21st of June, 1866, and hold up this proceeding as a full and legal ratification of the sale of July 18, 1865.

A careful reading of the petition convoking this family meeting, and of the proceedings of the meeting, leaves the mind in doubt as to the true object of the call and of the matters passed upon by the meeting.

It is in fact easier to define what was not asked and what was not accomplished, than to affirmatively explain the end proposed or attained.

We conclude that the family meeting was not convoked for the purpose of ratifying the sale of July 18th, 1865. On the contrary, the petition refers to a suit filed and a judgment rendered in November, 1865, for the purpose of avoiding that sale and decreeing that the property yet belonged to the Heroman succession ; and concludes with the prayer that the family meeting should assume the latter position, and treat the purchase made by Mrs. Bonning on July 18,1865, as made for the succession, and that the mortgage executed by her be assumed as binding on the succession and heirs. The recommendations of the family meeting, which were homologated by the court, conform with the prayer of the petition, and assume the notes and mortgage created by Mrs. Bonning as binding on the heirs.

We may state, in this connection, that the suit filed on May 13, 1867, against Mrs. Bonning personally, and against the Heroman heirs, was predicated upon the action of this family meeeting and must abide its fate.

Now, in treating with the sale of July 18th, 1865, the family meeting was compelled to consider it either as legal and binding, or as absolutely null and void. Its legality depended upon the acts held up as confirmatory by defendants. Its nullity flowed from the want of defendants in the executory process, unless cured by the alleged ratification.

If valid, it was a purchase made on credit by a married woman, living under the regime of the legal community, and the property passed to the community of John Bonning and wife. As such it completely divested the previous community of Heroman and wife, and clearly could not he treated as the property of the first and dissolved community, and much less as that of the succession of Geo. M. Heroman. If, on the other hand, the nullity of the sale resulting from the want of parties defendants was not cured, as we have shown above, by the family meeting of June 6, 1865, and proceedings had thereunder, the sale being absolutely null, it could not be ratified. Nothing can flow from nothing. 4 An. 229.

The act of the family meeting of June, I860, was, therefore, illegal, null and void, and strikes all proceedings in the suit of May, 1867, with incurable nullity.

Our conclusion is, therefore, that the succession of Goo. M. Heroman has never been divested of its title to the property in controversy, and that the parties must be restored to the position which they occupied previous to the 28th of April, 1865. The plea of prescription set up by defendants, warrantors, is also untenable.

We have purposely avoided to express an opinion on the plea of prescription of five years, interposed by plaintiffs, in bar of any rights claimed under the notes of May, 1856. We hereby reserve to the executors of Bird any and all rights which they may claim under these notes against the succession and heirs of Geo. M. Heroman, to whom we decree the property.

The Louisiana Institute being purchasers in good faith from Bird’s estate, they must recover judgment against the latter, for the sum of $2,500, amount paid on account of the purchase price, and the additional sum of $2,380, disbursed for improvements on the property, without prejudice to the rights, if any, of the executors of John Bird to claim the latter amount from the heirs of Heroman.

The conclusion which we have reached precludes the necessity of passing upon the numerous other issues raised in the pleadings and several bills of exception reserved during the trial, a solution of which would have stretched this already lengthy opinion into unpardonable dimensions.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed ; and proceeding to render the judgment which should have been rendered, it is ordered, adjudged and decreed, that the proceedings in executory process instituted on April 28th, 1865, and the sale made thereunder on July 18th, 1865, and all the other proceedings predicated thereupon, and all proceedings intended and purporting to confirm and ratify said sale, and that the sale of November 16th, 1878, to the executors of John Bird, and the sale by them to the Institute for Deaf and Dumb, be and they are hereby all and severally declared null and void, and without effect; and that the property mortgaged by Geo. M. Heroman on the 7th of May, 1856, be decreed to be the property of his succession and community, to be liquidated according to law.

It is further decreed that the Trustees of the Louisiana Institute for Deaf and Dumb recover judgment against the executors of John Bird in the sum of twenty-five hundred dollars, received by them as part of the purchase price, and the additional sum of twenty-three hundred and eighty dollars for improvements added by said Trustees to said property, without prejudice to the rights, if any, of said executors to claim the latter amount from the succession and heirs of G. M. Heroman, and that all costs in both Courts be paid by said executors, defendants and warrantors.

On Rehearing.

Fenner, J.

A careful review of the facts and law of this case convinces us that the judgment rendered in suit No. 1198 is binding as res judicata upon all the parties plaintiff herein, so far as the consideration upon which the judgment rests is concerned, and that there exists no lawful ground for annulling said judgment or sale made in pursuance thereof.

The arguments on the original hearing were addressed so prominently to the questions considered and decided by us in our original opinion, that our attention was diverted from this feature of the case.

We do not mean to contradict the doctrine that the judgmentsought to be annulled cannot be opposed as res judicata, to the action of nullity itself. 29 A. 599 ; 32 A. 15.

We merely mean that if there be no other ground of annulling the judgment than error of decision upon the issues involved, the decision upon those issues is final as between the parties to the litigation and operates as res judicata. This is self evident.

The parties to the suit No. 1198 were as plaintiffs, the executors of John Bird, the authors of the defendant corporation, and called herein as its warrantors ; as defendants, Mr.s. Bonning, personally, and as tutrix, John Bonning, co-tutor, and to authorize and assist his wife, and John F. Piker, under-tutor of the minors, George M., Elizabeth Ann, Mary C. and Emma G. Heroman, and finally, Frederick Heroman, a major heir.

We think it clear that, at least, in absence of fraud, the minors thus brought into court, through their tutrix, co-tutor, and under tutor, are as fully bound as if they had been majors and personally cited. La. State Bank vs. Nav. Co.; 3 An. 313; Johnson vs. Weld, 8 An. 126; Shaffer vs. Scuddy, 14 An. 575.

There was no other way of bringing them into court, and it is the mode provided by law. C. P. 115, 116, 108; C. C. 337; Dwight vs. Smith, 9 Rob. 32; Perche vs. Ledoux, 12 An. 350; Martel vs. Richard, 15 An. 598.

All objections as to citations are shut off by the appearance and answer of all the defendants through attorneys of the highest character whose authority to represent them is not disputed. What were the issues in the case1? The petition sets forth, substantially, all the proceedings discussed by us in our original opinion, viz : the original loan by John Bird to Geo. M. Heroman, secured by mortgage; the death of Heroman ; the executory proceedings in suit 290; the sale and adjudication to Mrs. Bonning; the execution of her notes for the price and mortgage on the property; the proceedings of the family meeting of June, 1866, ratifying the sale to Mrs. Bonning, and assuming the notes and mortgage executed by her for the price as binding on the heirs; and it prayed for judgment against the defendants on said notes with recognition of the mortgage, and decreeing that the property be seized and sold to satisfy the same.

The answer is as follows :

“ The defendants now come into court, and for answer say, that the notes sued on should not be paid, and that they are not bound to pay them — that they are wholly without consideration; pray that plaintiffs’ petition be rejected, and for general relief.”

It seems beyond dispute that the issues thus framed involved directly the validity and binding effect of the proceedings under which the liability of the defendants and of the property, for the debt and mortgage, was asserted in the petition.

Our original decree herein iudieates that w'e should have decided those questions differently; but the judgment rendered by the court in the suit itself, No. 1198, conforming to the prayer of the petition, sustained the demand of the plaintiffs therein and, therefore, decided the issues involved in their favor.

All the present plaintiffs were parties to that suit.

The jurisdiction of the court over the subject matter of the controversy does not admit of dispute.

No appeal having been taken, and the delay allowed by law therefor having expired, the finality of the judgment is as complete as if it had been reviewed and affirmed by this Court.

No principle of the law is more inflexible than that which fixes the absolute conclusiveness of such a judgment upon the parties and their privies. Whether the reasons upon which it was based were sound or not, and even if no reasons at all were given, the judgment imports absolute verity, and the parties are forever estopped from disputing its correctness. Cooley on Const. Lim, pp. 47, et seq., and authorities there cited.

“Matters once determined in a court of competent jurisdiction, may never again be called in question by parties or privies against objection, though the judgment may have been erroneous and liable to, and certain of, reversal in a higher court.” Bigelow Est. 3d Ed., Outline, p. Ixi, 29, 57, 103.

“ The estoppel extends to every material obligation or statement which, having been made on one side and denied on the other, was at issue in the cause, and was determined therein.” Aurora vs. West, 7 Wall. 102; 4N. Y. 113; 2 An. 462; 14 An. 576; 19 La. 318; 5 N. S. 664; 11 M. 607; 14 La. 233; 5 N. S. 170.

It is vain now to contend that the proceedings anterior to the suit, upon which the liability of the defendants and of the property was based, were absolute nullities. That was matter of defense to the suit. The court, in rendering judgment, necessarily affirmed the validity of those proceedings, and, right or wrong, it stands as a thing adjudged.

Equally vain is it to contend that the court had no right to order the property to be seized and sold. This was the relief asked in the suit and adjudged by the court, and is equally concluded by the judgment. The proceedings in execution being eomformable to the express terms of the judgment, cannot be questioned.

We find nothing in the facts, as presented by the record, or in the argument and authorities of plaintiffs’ counsel, to restrain or avoid the application of these well settled principles.

We cannot, consider the point made, in argument, that Mrs. McNabb, one of the plaintiffs, though a minor when the suit was instituted, had reached majority before the judgment was rendered, and that, therefore, the judgment against her former tutrix, and under tutor, did not bind her. . • ■

No such ground of nullity is set up in the pleadings, and it. does not fall within the issues presented in the case. We cannot notice it. The equity of the case, as well as the law, is clearly with the defendants. The plaintiffs have no rights not derived from their ancestor, George M. Heroman, and it is beyond dispute that he received from John Bird twelve thousand dollars in good money, as the consideration ujmn which, ultimately, the claim in suit No. 1198 rested. ' The attempt of plaintiffs heroin, if successful, would deprive Bird’s estate of the property taken in satisfaction of that claim, without returning the money borrowed, and, indeed, leaving him with his right of action therefor destroyed.

It is, therefore, ordered, that our former decree herein be annulled and set aside; and it is now ordered, that the judgment appealed from be affirmed at appellants’ cost.

Roché, J.

I adhere to the original opinion.

Mr. Justice Levy, absent on account of illness, did not participate in the opinion and judgment of the Court on the rehearing.  