
    CHIASSON ET AL. vs. DUPLANTIER.
    Eastern Dist.
    February, 1837.
    APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE OF THE SECOND PRESIDING.
    It is not proper ground for a direct action of nullity, against a judgment in the court by which it was rendered, that no law is referred to, or reasons adduced in its favor; and that it was rendered against the wife, on contracts entered into conjointly with her husband during marriage. These errors can only be examined on appeal.
    But if the wife be not authorized by her husband, or the judge, to appear in court, or stand in judgment, such judgment as may be rendered against her may be annulled by a direct action of nullity.
    Where the husband and wife are co-plaintiffs, or co-defendants, the husband’s authorization of the wife to appear in court, results from their joining, or being 'joined, in the same suit, even when he has no other interest than to assist her in asserting her rights.
    But where the husband and wife are sued jointly, and she is separated in property, the husband has no right to appear and file an answer for the .wife, as attorney, without her consent.
    
    This is an action of nullity, to set aside and annul a judgment of the District Court, on various grounds set forth in the opinion of the court, delivered by Judge Bullard.
    The plaintiffs allege, that they are the heirs and legal representatives of one Julia Sharp, then wife of William Maddox, and that Fergus Duplantier, obtained a judgment against her of one thousand nine hundred and eighty dollars, on a contract made while she was a married woman. They as her heirs, (she being dead,) seek to set aside and annul this judgment, by action of nullity.
    The judgment sought to be annulled, was rendered in May, 1S33, and this suit was instituted in September, 1835.
    The defendant pleaded a general denial, and that the judgment attacked was res judicata.
    
    The district judge sustained the action, so far as the judgment attacked operated against the heirs of the deceased, Mrs. Julia Sharp, and annulled it, as regards her. From this judgment the defendant appealed.
    
      Edwards, for the plaintiff,
    made the following points in this case :
    1. A wife cannot appear in court, without the authority of the husband, or of the judge, or confess a judgment, or authorize another to confess for her. She cannot even alienate, grant, mortgage, or acquire, unless the husband concurs in the act, or yields his consent in writing. The testimony of the attorney proves, that at the time he was conducting the defence of the suit of Duplantier vs. Maddox and Wife, and at the time he confessed the judgment for the wife, Julia Sharp, her husband, Maddox, was absent from the state, and that he had no communication with'him. Louisiana Code, article 123, 124, and 1789. Code of Practice, article 118. 4 Louisiana Reports, 308. 8 Martin, JV*. S., 547.
    2. The said judgment is a nullity, because the judge assigns no reason, nor refers to any law, in rendering the same. Constitution of the State of Louisiana, Part. 4, section 12.
    3. The court should have permitted plaintiff’s counsel to show by parole testimony, that their ancestor, Julia Sharp, signed the contracts upon which the judgment was rendered, and now attacked, as security for her said husband, Maddox. 8 Martin, JV*. S., 693. 2 Martin, JV*. S., 39. 5 Martin, JV*. S., 431.
    
      4. The testimony of the attorney who defended the other suit, wag property received by the court, he having been the person that confessed judgment for the wife, could best pfove whether she was authorized or not, according to law.
    5. The action to annul a judgment, may be brought at any time, by a person not qualified to defend the suit, provided they did not suffer the judgment to be executed against them. Code of Practice, articles 606, 612.
    
      Ives, contra, contended,
    that the judgment below should be reversed, and one rendered in favor of the defendant, because the judgment sought to be annulled, had acquired the force of res judicata. 7 Martin, JST. S., 430-437. ■
    2. It was not necessary, in bringing suit originally against the wife, if her husband was absent, to obtain the authorization of the court. 4 Louisiana Reports, 259.
    3. But there is no legal evidence in the record to show that the husband was absent when the original judgment was rendered ; or, if absent, that he did not authorize the wife to defend the suit. The husband and wife were joined in the suit, and an attorney appeared for both.
    4. When the husband and wife join in bringing a suit, the fact of authorization, by the husband, of the wife to appear in court, is implied. So ought their joining in a defence, to imply his authority. Latoes, et al. vs. Chinn, , 4 Martin, N. S., 388.
    5. The judgment attacked in this case, was rendered on the confession of the party, and, no reasons or reference to any law were necessary. 2 Martin, N. >$., 32.
   Bullard, J.,

delivered the opinion of the court.

This is an action to annul a judgment, recovered by the appellant in 1833, against Julia Sharp, late wife of one Maddox, and the mother of the plaintiffs. The alleged grounds-of nullity, are : 1st. That the judgment was rendered against her, without her having been authorized by her husband, or by the judge, to appear in court, or to stand in judgment, as is expressly required by law. 2d. That said judgment was not rendered on confession, as it purports, the said Julia Sharp not being authorized to appear in court, and defend said suit, could not confer any legal power on the attorney at law to appear and confess judgment; and, if any such authority was given, it was without the consent of her husband. 3d. That the court which rendered the judgment refers to no law, and adduces no reasons. 4th. That it is null, inasmuch as it was rendered upon contracts entered into conjointly with her husband, during marriage, for a debt of the community.

11 is noí Pr°per ground tor a direct action of judgment in the ®ourt h? }vll,Cih that no law isre-reasons adduced [{¡au/was^en-dered^ against tracts ’entered tand_ during marrin&c. Tfhcs© errors can only apPea]>mine<1 on

But if the wife be not authorized by her hus-^'appear In 00urt or sland in judgment,such judgment as may against he"?may be annulled by a direct action oi nullity.

To this the defendant answers by a general denial, and J ° further pleads the authority of the thing adjudged in a former suit between the same parties.

The third and fourth alleged nullities do not form proper grounds for a direct action, to avoid a judgment brought before the same court by which it was rendered. They can be examined only on appeal. The fourth particularly involves the whole merits of the original suit, as relates to the liability of the defendant, under the contracts between the parties. The only question, therefore, which can be examined in this case, is, whether the wife was authorized to appear in’defence of the suit, stare in judíelo ; for if she was, it is immaterial whether the judgment was entered, by consent, on obtaining a stay of execution, or after a full trial , . , . „ . . . . ¶ , . _ upon the merits; and, it she was not, either by her husband or the court, the judgment may be annulled. Code of Practice, 606.

.. . . . In the original suit, the wife was sued jointly with her husband, to enforce a contract entered into by both, and the same attorney at law put in an answer to the merits, in the mi i i . . . • name of both. The husband and wife joined in the defence, and, on the part of the wife, the validity of the contract was expressly and formally put in issue. Subsequently, a judgment was rendered in favor of the plaintiff, with a stay of execution, until the 1st of January, 1834, and as is recited in the judgment, upon the confession of the defendants, by their attorney.

Where the •wife _ ave co-defendants.1 the rization SofUtthé wife to appear in court, results from their join-joined01' instile same su.it, even when he has no other interest, in^ssertíngher rights.

A married woman, not separated from bed and board, is, unquestionably, incapable of contracting, or of appearing, as a party in judicial proceedings, without the authorization of her husband, or, in case of his absence or interdiction, that of the judge. • In matters of contract, the concurrence of the husband in the same act or contract', is considered, by necessary implication, as sufficient evidence of authorization to the wife. Whether the same principle applies, in relation to judicial proceedings, when both husband and wife are sued, and join in their defence to the action, we are called on jn this case, to consider and decide. In the case of Lawes, et al. vs. Chinn, 4 Martin, N. S., 388, this court held, that the husband and wife, being co-plaintiffs, his authoriza-^on to her °learty resulted from his joining in the suit, in which he had no other interest than to assist her in asserting . . . T , , t n „ , . . her right. In the present case she was co-defendant with her husband, and it is difficult to perceive any difference in principle between the cases. In the first, she became a party . . , . ... . J by petition ; m the last, by citation and answer. The same attorney, who was authorized by the husband to "put in an answer for both, was necessarily empowered to represent the wife. In this case, it is true, the husband, who had bound himself by the same contract, had interests to defend, distinct from those of the wife. But it is also true, that the answer was applicable to both.

In France, under a legislation, identical, in this respect with ours, this question has been repeatedly solved by the highest judicial authority. The Court of Cassation has decided, that the husband, who appears as a party (quiplaide) jointly with his wife, is, by that alone, presumed to have authorized her ; that, in such a case, it is not necessary the judgment should» express, formally, that the wife was authorized; that, even in a case where the wife has interests distinct from the husband, she will be held to be sufficiently authorized, when she proceeds or does any judicial act jointly with him ; but that the authorization is not implied when both are sued, and the husband makes default, but is confined to the cases where the husband appears. Sirey 8, 1, 526; Ibid. 7, 2, 790; Ibid. 14, 2, 211; Ibid. 28, 1, 208; Ibid. 29, 1, 240; Ibid. 11, 1, 344.

But where the husband and wife are sued ]sUsep’a¿tfdS^n right to appear swer^for " the wife,as attorney, sent,

The case of Dugat vs. Markam et al, 2 Louisiana Reports, 29, which appears to have been relied on, is essentially different from this. The court held, in that case, that the . , • i i husband had no right to appear and hie an answer, as attorney for his wife, without her consent, when they are sued jointly, and she is separated in property. In the present case, the wife did consent, and it is expressly shown that the attorney acted under her immediate instructions. We must presume that the attorney had the husband’s authority to appear for him in the same suit. That authority appears never to have been disputed by him, and could not be disproved in this case, as he who had alone an interest in contesting it, has acquiesced in the judgment, and is not a party.

The only question is, whether he authorized his wife to appear, and we are of opinion, that by appearing himself, and defending the suit, in which he was co-defendant with his wife, his authorization is sufficiently shown.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and ours is for the defendant, with costs in both courts.  