tion entitled: "What Contracts shall be Avoided by Persons not Parties to Them."

*

*

*

But should it be conceded that the term or limit of time prescribed by the article can be construed as meaning technically "prescription," it appears to have been the clear intention of the framers of the Code not to have excepted minors from the effect of the shortest term of prescription as established in our law. Article 3541 reads: "The prescription mentioned in the preceding article, and those described above in paragraphs 1 and 2, run against minors and interdicted persons, reserving, however, to them their recourse against their tutors or curators." The paragraphs referred to are those which treat of the prescriptions of "one year" and of "three years." Hence it is that this court, in commenting on the prescription of one year as a bar to the action for the supplement of the price on the part of the seller, and that for diminution of the price, etc., on the part of the buyer, under the provisions of article 2474 (now article 2498) of the Code, used the following language: "It runs against minors from the day of the sale. This short and absolute prescription was found conducive to the security and alienation of immovable property." Sewell v. Willcox, 5 Rob. (La.) 85. These considerations apply with great force to the revocatory action, and are strongly suggestive of the wisdom of resisting that right of action within a short space of time, and of making the restriction applicable to all persons, without the slightest discrimination in favor of minors. It is of the very essence of the reason which requires a short term for action that it should apply alike to minors, for otherwise the object of the law could frequently be defeated. is easy to conceive that the minor, who is the real plaintiff in this case, might be only two years of age, and hence the matters at issue herein could be held in suspense for nineteen years, during which time confusion would characterize all questions connected with the mortgage rights of the defendants in this case. Such a construction would surely not be "conducive to the security and alienation of immovable property," and would defeat the precise object contemplated by the law-maker when he restricted the right of action within the short space of one year.

It

No doubt can be entertained of the wide distinction which exists in our system of laws between the rules which regulate the mode of acquiring rights by the lapse of time, which is, strictly speaking, prescription, and the principles which govern the mode of circumscribing certain judicial actions or proceedings within a prescribed limit or space of time. The question comes up before this court in the case of Beaird v. Russ, 34 La. Ann. 315, in which one of the parties contended that the modes of interrupting prescription defined in the Code under that title, could be applied to the delay for appeals as fixed by law. After referring to the definitions of "prescription" and of “appeals," the court said: "As will be readily seen, one is a rule of action prescribing one of the modes of acquiring property, or of discharging debts; the other is a rule of judicial procedure, looking to the correction of an alleged judicial error. The only element in common between prescription and appeal is that of time; in the former it is the essential element, in the latter it is only incidental, and intended only to regulate or limit the exercise of the act." It is too plain for argument that the same difference exists, and that the same distinction must be observed, between the rules which govern prescription, strictly speaking, and those which prescribe the lapse of time which limits the exercise of the right of the revocatory action. The same distinction is recognized in French jurisprudence, as shown by the writings of learned commentaries on that system, whence ours has been derived. Thus, in the "Droit Civil· Francais," by Messrs. Aubry & Ran, volume 8, p. 426, we find the following language, which bears directly on our present discussion: "La prescription proprement dite se distingue facilement, et par sa nature même, des déchéances. Resultant de l'expiration des delais accordés pas la loi, par la convention, ou

par le juge soit, pour l'exercise d'une option ou d'une faculté quelconque, soit pour le paiement d'une obligation ou l'execution d'une condamnation. Il ne faut pas non plus confondre la prescription proprement dite avec les déchéances qu'entraine l'écoulement d'un delai préfix auquel la loi en accordant une action, en a limité l'exercise. * * * A la différence de la prescription, qui est suspendue en faveur des mineurs et des interdits, les delais importants déchéance courent contre eux, aussi bien que contre les mineurs jouissant de leur droit. C'est à ce point de vue surtout qu'il importe de distinguer les déchéances de la prescription extinctive." Note 16, p. 427. We therefore feel fully warranted to conclude and hold that the lapse of time prescribed by the article within which to institute the revocatory action is not suspended as to minors, and that the rule fixing the delay was properly invoked by the defendants in this case. Hence the present action came too late, unless appellee's contention, that her previous action in this matter operates a suspension of the rule, is correct.

3. That contention involves the third question in the case, as hereinabove indicated. In that connection the following facts are of record: On the 24th of August, 1885, a suit was brought by Mrs. Mary J. Ashbey, who therein obtained a judgment in the lower court annulling the mortgage herein assailed as a fraudulent preference in favor of the defendants Martha B. and Louis Ashbey. On appeal to this court the judgment thus rendered was reversed on the distinct and exclusive ground that Mrs. Ashbey had no interests in the premises, not being the owner of the judgment of May 29, 1885, rendered in favor of her children. Ashby v. Ashby, 39 La. Ann. 105, 1 South. Rep. 282. This is the action which is now held up as a legal interruption of the delay fixed by law for the revocatory action. But the very reason for which her action was dismissed, to-wit, her absolute failure to show a real and actual interest which she was then pursuing, is a sufficient answer to her present contention as tutrix representing her minor child, in whom was centered the right of action, which did not exist in her personally. The action was decreed to be a nullity, and it is clear that a nullity, or nothing, can produce no legal effect. In the case of Bertrand v. Knox, 38 La. Ann. 350, it was held that a defendant, sued as a single woman, and thus cited, could not be brought into court by the service on her of an amended petition alleging that she was a married woman. A citation served on her in a different capacity, and as such illegal, could not be completed by the mere service of an amended petition alleging her correct status or real capacity. Leberman v. Steam-Ship Co., 28 La. Ann. 412. In the case of Knoop v. Blaffer, 39 La. Ann. 23, it was held that a suit against the same defendants as directors of a defunct bank, by parties who were dismissed for want of personal interest, did not interrupt prescription. The court said: "The plaintiffs in that case were without a cause of action. * * * Prescription is stricti juris, and cannot be eked out by inference, nor extended from one cause to another by analogy; neither can the legal interruption of prescription." The same rule applies here. No legal effect can flow from a proceeding decreed to be null for want of real or actual interest in the plaintiff therein. The delay of forfeiture was not interrupted by that suit. Ashby v. Ashby, 39 La. Ann. 105, 1 South. Rep. 282. Hence the present action is defeated by the plea herein interposed by the defendants. It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed; and it is now ordered that plaintiff's demand as tutrix of the minor William H. Ashbey be rejected, and that her action be dismissed, with costs in both courts.

v.5so.no.21-35

ASHBEY et al. v. ASHBEY.

(Supreme Court of Louisiana. January 7, 1889.)

1. TRIAL-CONDUCT OF TRIAL-WAIVER OF EXCEPTION-PARTIES.

It is a general rule of practice that a defendant, who does not insist upon the trial of an exception before the case is tried on the merits, is presumed to have waived the exception. But the rule admits of at least one exception, and that is when the exception suggests a defect which the court may notice ex proprio motu, such as an omission in a rule to erase a mortgage, to make the mortgagee whose rights are involved a party, or to notify him.

2. SAME-NECESSARY PARTIES.

In such a case, the mortgagee is not bound by the judgment, although he may be seriously inconvenienced and injured thereby, at least in restoring his mortgage, which may, under the judgment, have been released by the recorder of mortgages. Hence all mortgagees are necessary parties in a proceeding intended to erase their mortgages.

3. SAME.

"The first duty of a judge is to hear a party before he makes a decision to his injury." Gasquet v. Dimitry, 6 La. Ann. 453.

4. SAME-WHEN TUTOR CANNOT REPRESENT MINORS.

In a rule to cancel the inscription of a mortgage in favor of minors against their natural tutor, and to invest the community to which the latter was a party with ownership of immovable property which stands in the name of the minors alone, their interests are in opposition to those of their tutor, and he is not competent to represent them in that litigation; their under-tutor should be notified. (Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; VISSOT, Judge.

Rule by Mary J. Ashbey and others against Joseph Ashbey, personally, and as natural tutor of his minor children, to cancel certain mortgages. Judgment for plaintiff, and defendant appeals. The opinion states the facts. An application for a rehearing in his case has been refused.

A. J. Lewis, for appellant. J. S. & J. T. Whitaker, for appellee.

POCHE, J. Plaintiff, as natural tutrix of her minor children, and joined herein by her children of age, and by the tutor of one of her grandchildren, took a rule against the defendant, personally, and as natural tutor of his minor children issue of his second marriage, to which the sheriff and the recorder of mortgages of the parish of Orleans were made parties, with a view to the cancellation of several mortgages affecting certain immovable property which had a short time before been adjudicated to her, and for other purposes. One of the reliefs prayed for is a judicial declaration to the effect that a piece of immovable property purchased, and standing in the name of the defendant's second wife, belongs in truth to the community once existing between said spouses. The mortgages sought to be canceled are one in favor of Martha B. and Louis Ashbey, growing out of an act of mortgage of May 20, 1886, and other inscriptions in favor of the same parties, touching their rights in the community between defendant and their deceased mother, who was the first wife of Joseph Ashbey, the full particulars and details of which mortgages are contained in the opinion of the court rendered this day in the case of Mary J. Ashbey, Tutrix, v. Joseph H. Ashbey et al., ante, 539, (No. 10,213.) The other mortgage involved in the rule is that in favor of the minor children, issue of Joseph H. Ashbey's second marriage, resulting from an inscriptian of an abstract of the inventory of their mother's succession, which bears date June 30, 1884. The adjudication herein referred to was effected in execution of the judgment rendered May 29, 1885, in favor of plaintiff in this rule, against Joseph H. Ashbey, also described in the opinion of this court just referred to. In answer to this rule, Joseph H. Ashbey filed numerous pleas and defenses, all contained in the same pleadings, and many of which are in the nature of dilatory exceptions. He pleaded: (1) The prescription

of one year. (2) The misjoinder of parties as plaintiffs. (3) The want of proper parties defendant. (4) The incompetency of the court or division. (5) That a rule was an improper proceeding for the relief sought. (6) No cause of action. (7) That a conventional mortgage securing promissory notes cannot be treated as a nullity on its face. (8) The nullity of the adjudication to plaintiff Mary Ashbey. (9) That, if valid, the adjudication was burdened with the minors' mortgage. (10) That title to property cannot be determined by rule. (11) A claimed reduction of plaintiff's judgment against J. H. Ashbey.

At a glance it appears that these pleas, which are promiscuously mingled, embrace many matters which, under correct practice, must be urged in limine, and the record shows that defendant went into the trial on the merits without insisting on a decision of any of his exceptions. Hence he is debarred of the right of urging them on appeal. That rule of practice, which is as ancient as our jurisprudence, has been formulated as follows: "A defendant, who does not insist upon the trial of an exception before the case is tried on the merits, is presumed to have waived the exception." Kempe v. Hunt, 4 La. 482; Powell v. Graves, 15 La. Ann. 188; Cure v. Porte, 18 La. Ann. 206; Richardson v. Hunter, 23 La. Ann. 255; Tupery v. Edmondson, 32 La. Ann. 1146; Hickman v. Dawson, 33 La. Ann. 438. But jurisprudence has recognized, and the condition of this case suggests, an exception to this general rule, and that involves the error of plaintiff in having utterly failed to make the mortgagees, whose mortgages, are herein sought to be canceled, parties as defendants in their rule. It has been informally held in our own jurispru dence, and, indeed, it stands to reason, that “a mortgagee, not made a party to proceedings by which a judgment was obtained ordering the recorder of mortgages to erase the mortgage held by him, will not be bound by them." That doctrine, which is really an axiom of law and justice, has led this court in many cases to refuse countenance to a proceeding looking to the cancellation of mortgages, without notice to or hearing from the mortgagors, even in the absence of any plea to that effect; and in many instances the court has refused to order the recorder of mortgages to proceed to the cancellation, in the absence of such necessary parties, as this would be equivalent to an order to that officer to perform the duty at his peril. Florance v. Mercier, 2 La. 489; Waters v. Mercier, 4 La. 17; State v. Le Blanc, 5 La. 330; Gasquet v. Dimitry, 6 La. 453; French v. Prieur, 6 Rob. (La.) 299; Leverich v. Prieur, 8 Rob. (La.) 97; Delavigne v. Gaiennie, 11 Rob. (La.) 171.

Now, it appears from the record that three of the inscriptions sought to be erased are in the names of Martha B. and Louis Ashbey; that one of the mortgages thus to be disposed of is the very act of May 20, 1885, this day recognized by the court as a valid mortgage, (in suit No. 10,213,) supra, and no attempt is shown on the part of plaintiffs to have either of these persons so vitally interested made a party to these proceedings. From the statement of the pleadings contained in the first part of this opinion it appears that the plan of subjecting the minors to the rule is by notifying their father as their natural tutor. But as to them, the twofold purpose of the rule is to cancel a mortgage in their favor against their father, and to declare that they own but one-half of a piece of valuable immovable property, of which they are prima facie the sole owners, and to invest the ownership of the other half in their father. Hence their interests are in opposition to those of their natural tutor, and under the law he is incompetent to represent them in this controversy. Article 275 of the Civil Code provides: "It is the duty of the undertutor to act for the minor whenever the interest of the minor is in opposition to the interest of the tutor." Frere v. Frere, 1 Mart. N. S. 462; Succession of Hebert, 4 La. Ann. 77; Holmes v. Hemken, 6 Rob. (La.) 51.

It is therefore safe to conclude that the minors, whose mortgage rights are directly involved, and are actually jeopardized in this rule, were not properly

before the court, which rendered a judgment entirely annihilating their aforesaid rights. Their under-tutor, who should have been brought into the case, has joined in this appeal, in which his voice must reach the ears of the court. The theory on which our jurisprudence rests,-the rule that a mortgagee is a necessary party to a proceeding intended to affect his mortgage,-rests on sound policy of reason and justice. In the case of Gasquet v. Dimitry, 6 La. 453, the plaintiffs in rule sought to coerce the sheriff to cancel a certain mortgage, without a notice to the mortgagee. The sheriff refused to act without an order of court, and, although the mortgagee made no appearance, the court discharged the rule, and the decision was affirmed on appeal. This court said in that case: "Although these mortgagees are not parties to the rule, its being made absolute may do them great injury. They may not be bound by it, but the sheriff may release, and the recorder of mortgages, on the production of the release, may proceed to the radiation of these mortgages, and the radiation may occasion trouble and injury to these mortgagees and subsequent purchasers. The first duty of a judge is to hear a party before he makes a decision to his injury. Applying this proposition to the present case, we cannot say the first judge erred, when he concluded that the person who required him to order the sheriff to release the mortgages could not be heard because he had not made these mortgagees parties, or given them notice."

This language, characterized by a spirit of wisdom, fairness, and justice, is entirely applicable to the condition of the instant case, and it effectively demonstrates that there is error in the judgment of the district court below, which had granted to plaintiffs in rule all the relief which they had prayed for. It is therefore ordered and adjudged and decreed that the judgment appealed from be annulled, avoided, and reversed; and it is now ordered that plaintiffs' rule be discharged, at their costs in both courts.

GOMILLA et al. v. MILLIKEN.

(Supreme Court of Louisiana. January 7, 1889.)

1. WRITS-ISSUE AND VALIDITY-OBJECTION MUST BE TAKEN IN LIMINE.

An objection to the effect of a citation, and to its sufficiency to bring an absentee into court as a garnishee in an attachment suit, is substantially an exception to the jurisdiction of the court ratione personæ, and, to be availing, it must be formally presented in limine, and by way of exception, and must be passed upon by the court, or the objection will be considered to have been waived.

2. SAME.

It has been the uniform and consistent ruling of our predecessors, and of this court, since the decision of Phipps v. Snodgrass, 31 La. Ann. 88, that an exception to the jurisdiction of the court ratione persone must be taken in limine.

3. GARNISHMENT-ISSUE AND SERVICE OF WRIT-HOUR of Service.

Under the jurisprudence of this court interpreting our Code of Practice, the hour of the day at which an attachment is levied is taken as determining the priority in rank of the privilege conferred thereby in respect to others levied upon the same day.

4. SAME WHEN GARNISHEE'S INDEBTEDNESS ACCRUES.

A party having entered into four distinct and separate contracts for the delivery of a specified quantity of corn to another at different dates, consummates and fulfills the two first maturing, and defaults on the other two subsequently, held, that the contractor is entitled to payment of the price at the instant of complete fulfillment of two, and the amount due him could be legally garnished by his creditors, and that the contractor could not hold same for his reimbursement for the loss of profits on the two remaining contracts, which is occasioned by the contractor's default subsequently.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans.

Action by Gomilla and others, partners, doing business as Gomilla & Co., against John T. Milliken, to recover money due on contract. Kehlor Bros. were garnished, and a judgment rendered against them, from which they appeal. An application for a rehearing in this case has been refused.