Clark v. Hébert

Buchanan, J. This is a suit upon a judgment rendered in another parish, than the one in which the present suit is instituted. Plaintiff and appellant objected to an amended answer filed by the defendant on the grounds: 1st. That the said amended answer attacks a judgment rendered in another court. 2d. That the allegations of the amended answer are inconsistent with those of the original answer. On the first ground : a direct action of nullity' must bo instituted in the same court which has rendered the judgment&emdash;but when an action is made the basis of another action, in another court, the party sued may plead in defence, such nullities as are here pleaded. On the second ground : -we agree with the Judge below, that the pleas of the two answers are not inconsistent. Plaintiff excepted to a second amended answer, on the same grounds as above stated, and on the further ground, that the judgment, which is the basis of the present action, constitutes res judicata between the parties to this suit. The last ground was properly overruled. . It constituted no reason lor excluding the amended answer, which sat up various claims against the minor for payments made on her account by her tutor, Vincent Kirkland. It might, possibly, have been a good ground for excluding evidence under the said amended answer, had the judgment been given in evidence. It would then have appeared whether the conditions of the presumption of the thing adjudged, as defined in Article 2265 of the Code, existed, in reference to the claim sot up in the second amended answer. But the judgment in question is not in evidence in the cause, having been excluded by the District Court, for reasons which form the subject of the third of the plaintiff’s bill of exceptions, which is as follows : The plaintiff offered in evidence a copy of the judgment of the District Court of the parish of Livingston, and of tha fi. fa. issued thereon, which are the foundation of this suit; to which the defendant objected, upon the ground that a judgment of another court could not be given in evidence, without the production of the whole record&emdash;which objection was sustained by the court, and the evidence was ruled out; to which ruling, an exception was taken. [280] The appellant’s counsel urges in support of this bill of exception, the decisions of this court in Stafford’s Succession, 2 An. 886, and Price v. Emerson, 14 An. 141; in which cases, it was held that the production of the entire record of mortuary and insolvent proceedings is not necessary. But it must be observed, that in the cases cited, the party offered a portion of such proceeding's, merely to prove an isolated fact in the proceedings, not at all involving the whole settlement of the insolvent or intestate estate under administration. Whereas, it seems that the judgment against plaintiff’s tutor, was but the compliment or consummation of the whole administration of the ancestor of defendants, for which they are sought to be made liable, and that the rule in 1 Greenleaf, section 511 is applicable. The general rule, says that author, is, that when a party intends to avail himself of a decree, as an adjudication upon the subject-matter, and not merely to prove collaterally that the decree was made, he must show the proceedings upon which the decree was founded. “ The whole record,” says Chief Baron Comyns, “ which concerns the matter in question, ought to be produced.” We find no error in the ruling- of the court below. It is, therefore, adjudged and decreed, that the judgment of the District Court bo affirmed, with costs. Land, J., absent,