Foss v. Brentel ( 1859 )

Merrick, C. J.

As we understand the appellant’s brief, this case presents but two questions, viz : Whether an order of court making a rule absolute can, where it has the effect to dispossess a person of property, have the effect of the thing adjudged? ■ And if so: Whether the judgment on the rule in the controversy between the defendant, Mrs. Brentel, alone, and Jean Foss, relative to the possession of the stall in the Dryades market, can be pleaded in bar of the suit of Jean Foss against Mrs. Brentel and John Weber ?

If the judgment on a rule passes finally upon the merits of a controversy between parties, no valid reason can be urged why it should not produce the same effect as a decree in any other form of proceeding. As it ends all controversy in a cause, and with it the cause itself, it is a judgment, and as such must produce all effects declared by law to be the incidents of a judgment.

The controversy between Mrs. Brentel and Foss is, as to those two, a controversy between the same parties, in the sense of Article 2265 of the Oivil Code. Foss cannot deprive her of her plea of res judicata, by joining another person with her in the second suit. This would be an easy mode of defeating the plea in all cases.

But as to the defendant, Weber, the case is somewhat different. He was not a party to the suit between Mrs. Brentel and Foss, and, strictly speaking, the plea of res judicata does not apply to him. But in the former suit, the possession of the stall was decreed to Mrs. Brentel, and it is the execution of this judgment which plaintiff seeks to arrest. Now, Weber can defend himself, by showing title in Mrs. Brentel, and authority from her, and as the plaintiff sets up no special cause of action against Weber, we think when the plea of res judicata is sustained in favor of Mrs. Brentel, and she is permitted to execute her judgment, the plaintiff has no longer any interest in maintaining his action against Weber, and, as a consequence, must fail in his suit. O. P. Art. 15.

It thus appears that the judgment of the lower court ought to be affirmed, and it is so decreed.