against the executors and herself personally had the same object in view as the present suit, and that the judgment in that suit has the force of the thing adjudged, and bars the present controversy. To this contention plaintiffs reply that the judgment of June 17, 1892, was not a judgment, for the reason that it was rendered after the matter in litigation had been compromised, and after, therefore, there were no longer any parties litigant, or any suit. In support of this, plaintiffs refer to decisions where courts have refused to deal with moot cases, or with cases where there were not two litigants. Kohn v. Ins. Co., 15 La. 86; Bosio v. Picton, 106 La. 249, 30 South. 699; Huey v. Kroutter, 106 La. 450, 30 South. 892; Chamberlain v. Cleveland, 1 Black, 419, 17 L. Ed. 93; Lord v. Veazie, 8 How. 251, 12 L. Ed. 1067; Earl of Bandon v. Becher (before the House of Lords) 3 Clark & Finally, 508. The principle of these decisions is contested by no one, but it has application only where, without there being any actual litigants, the court is called upon to decide something. In the instance here in question the court was not called upon to decide anything after the compromise had been entered into, but merely to sign a judgment already rendered by the judge and entered upon the minutes. The signature of the judge is no part of the judgment, but merely a formality prescribed by law for the better authentication of it. The most that can be said against this judgment is that it was in a sense a consent judgment, since the parties waived their right to ask for a new trial; but if it had been a consent judgment altogether, its aptitude for serving as a basis for res judicata would not thereby be impaired. We are nowhere taught that consent judgments do not constitute the thing adjudged. Indeed, what better guaranty can the law have of the correctness of a judgment than the consent of the parties, and what better reason for refusing to permit the litigation to be opened up anew? As we view the situation, this judgment which recognized and decreed the heirship of the plaintiffs, and as against the succession of Dauphin decreed their ownership of certain property, and condemned the succession of Dauphin to pay a certain amount of money, was part of the thing for which Mrs. Dauphin, under the compromise, paid to plaintiff's the $40,000 called for by the compromise. Mrs. Dauphin, as purchaser of the rights of the plaintiffs, had an interest in having this judgment put in regular and final form by having the signature of the judge affixed to it. Far from being an agreement that this should not be done, the compromise must be looked upon as an agreement that it should be done. As a matter of fact, by referring to the memorandum of the compromise as drawn up between counsel, it is seen that the express agreement was that the judgment should be recast. This could mean nothing else than that as recast it should be duly, signed. The contention of plaintiffs that this judgment could not be signed, that the effect of the compromise was to terminate the suit so completely that no step could thereafter be taken in it, not even the merely formal step of affixing the signature of the judge to the judgment, so that, in point of fact, there never was any judgment, is strangely in contradiction with the very first recital of the notarial act evidencing the compromise, which is an express reference to this very judgment as having judicially established and decreed the heirship of the plaintiffs; and is also strangely in contradiction with the first allegation of their petition in the present suit, which is that they "are the sole surviving heirs of Mrs. Cecilia Choppin, the deceased wife of the late Maximilien A. Dauphin, and were duly recognized as such by a judgment of this honorable court in the matter of the Succession of Maximilien A. Dauphin, No. 31,780 on the docket." The judgment thus here recited and relied upon as a final judgment is the very same judgment which plaintiffs say could not be signed and was therefore never legally signed. The plaintiffs not only thus allege and rely upon this judgment in their pleadings, but they offered it in evidence in this case in proof of their heirship. After thus setting up and using this judgment, the plaintiffs could not assail it, even if it were an absolute nullity. They would be estopped. iels v. Tearney, 102 U. S. 421, 26 L. Ed. 187; Simpson v. Lewis, 19 La. Ann. 457. Dan Plaintiffs also allege, but do not press in argument, that this judgment is an unsigned judgment, because the judge's signature was affixed to it prematurely, before the expiration of the three judicial days for new trial. This objection is evidently frivolous. Counsel claim that this judgment is not res judicata of the present demand, for the further reason that it did not cover or bear upon the property now sued for, but covered only the property included in the inventory. This contention is utterly untenable. In 1892 plaintiffs sued to recover everything that as heirs of Cecilia Choppin they were entitled to from the succession of Dauphin. If in that suit they failed to recover any property that they are now claiming, it was because of the deficiency of their proof, not by reason of their having failed to make allegations. They alleged that the first community owned over $200,000 of property more than appeared in the inventory, and prayed judgment for the $100,000. They even brought against the deceased a charge of fraudulent concealment, similar to the one now brought against defendant. That suit was, like the present one, a suit to make good the plaintiffs' rights in the first community, and the judgment rendered in it is necessarily, therefore, res judicata of the demand in the present suit, until set aside in an action of fraud. The plaintiffs in their petition allege that this judgment "should be decreed null and void, in so far as it undertakes to determine and limit the property rights of petitioners and their interest in the estate of the first community." This is an express admission and judicial allegation that said judgment does "determine and limit" the rights now urged by plaintiffs in the present suit. It is evident that this judgment is res judicata of the present suit, and must operate as a bar to it, unless set aside in an action of fraud. Prescription. Against the attack on this judgment on the ground of fraud the defendant pleads the prescription of one year, and the next thing necessary to be considered is this plea. | The Code of Practice (article 613) provides that the action for annulling a judgment on the ground of fraud "must be brought within the year after the fraud has been discovered," and the question raised by defendant is whether the plaintiff's did not discover the facts on which they base themselves, in their allegation of fraud, more than one year before the institution of their suit. The information as to the facts in question came to plaintiffs through the attorneys now representing them in the case. As early as April, 1899, Mr. George W. Flynn, one of these attorneys, was possessed of this information; and on the 14th of October, 1899, Messrs. Lazarus & Luce, the other counsel, wrote to Judge Sherburne, also of counsel, to get the procurations of the heirs, and Judge Sherburne at once set to work doing So. Mrs. Covarrubias lived in Berlin, Germany; Mrs. Payne, in Virginia; Sherburne Choppin and Mrs. Fisher, in the city of New Orleans; all the other plaintiffs lived together on a plantation near Alexandria, La. Judge Sherburne resided in Baton Rouge, La. At the time the suit was brought the powers of attorney of Mrs. Covarrubias and Sherburne Choppin were held by Mr. George W. Flynn, those of the other heirs by Judge Sherburne. As the communications between these counsel and the plaintiffs preliminary to bringing the suit, and also between the counsel and other counsel and parties in New York City, had presumably been by letter, and would show the date when the plaintiffs were first informed of the alleged fraud, the defendant, for the purpose of fixing the initial point of the prescription, took out subpoenas duces tecum, addressed to the plaintiffs and to the resident counsel, for the production of any letters that might have passed between the parties, and also for the production of any powers of attorney or other documents that might have been executed between them. The subpoenas were served only on the parties living in New Orleans. Mr. Flynn gave the date of the powers of attorney held by him, and pleaded privileges as a reason for not producing the letters which had passed between him and the parties in New York. The two resident plaintiffs returned that they had neither sent nor received any letters relating to the matter. The communications of Messrs. Lazarus & Luce with the plaintiffs had been through Judge Sherburne, and as these gentlemen were not called upon to produce the letters between them and Judge Sherburne, but only the communications between them and the plaintiffs, they returned that no letters had passed. On the trial of the plea of prescription, Mr. George W. Flynn and Judge Sherburne, who held the powers of attorney of the heirs, testified, and also five of the plaintiffs, namely, Sherburne Choppin, Mrs. Estelle Choppin Fisher, Clifford O. Choppin, Emma E. Choppin, Marie Choppin, and Arthur R. Choppin. Why the other five plaintiffs did not testify is not explained. Bearing as it does on a fact so recent, a fact which, judging from the acrimony with which this suit has been conducted, was of very great interest to the plaintiffs, this testimony, we must say, is exceedingly unsatisfactory. And for this condition of it the plaintiffs are responsible, for the fact in question-the time when they learned of the fraud they complain of-was peculiarly within their knowledge, and not within the knowledge of the defendant. In view of the unsatisfactory condition of this testimony, it may be well, before proceeding further, to advert to the principles governing the burden of proof in the matter. The right of action to annul a judgment for fraud is not unconditional or perpetual; it is subordinated to the condition that the action "must be brought within the year after the fraud has been discovered." Code Prac. art. 613. And the burden of proof is on the plaintiffs in nullity to show when the knowledge of the fraud was acquired. Expressly so held in Farrar v. Peyroux, 7 Rob. 92; Wheat v. Union Bank, 7 Rob. 94. And such information as ought to put the plaintiff on inquiry will suffice to start the course of the prescription. "If," said this court in the case of Bory v. Knox, 38 La. Ann. 379 (which was a suit to annul a judgment on the ground of fraud), "an opportunity is afforded to a party to know and learn about a certain matter bearing on his interest, and he fails or refuses to profit by it, if he closes his eyes to the notice spread before him and shuts his ears to oral information directly imparted to him, the law will hold him as bound by the same, and as fully notified as if he had taken thorough personal cognizance at the time of the information imparted and of the notice given." On this subject of the duty of dhe plaintiffs in nullity to allege and prove the time and circumstances of the discovery of the fraud complained of, the following somewhat extended excerpt from the decision of the Supreme Court of the United States in the case of Wood v. Carpenter, 101 U. S. 135, 25 L. Ed. 807, furnishes a full and satisfactory statement of the law. And it is of safe application in this state, since, in administering relief from fraud, our courts exercise the same jurisdiction as ordinary courts of equity, and, in the absence of special statutory regulations, ought to be guided by the same principles; and we have no special statutory regulations on the subject, the Code of Practice contenting itself with giving the action (article 607), and limiting it to one year from the discovery of the fraud (article 613). At page 140, 101 U. S., 25 L. Ed. 807, the court said: "The discovery of the cause of action, if such it may be termed, is thus set forth: 'And the plaintiff further avers that he had no knowledge of the facts so concealed by the defendant until the year A. D. 1872, and a few weeks only before the beginning of this suit.' There is nothing further upon the subject. "In this class of cases the plaintiff is held to stringent rules of pleading and evidence, 'and especially must there be distinct averments as to the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is, so that the court may clearly see whether, by ordinary diligence, the discovery might not have been before made.' Stearns v. Page, 7 How. 819, 829 [12 L. Ed. 928]. This is necessary to enable defendant to meet the fraud and the time of its discovery.' Moore v. Greene, 19 How. 69, 72 [15 L. Ed. 533]. The same rules were again laid down in Beaubien v. Beaubien, 23 How. 190 [16 L. Ed. 484], and in Badger v. Badger, 2 Wall. 95 [17 L. Ed. 836]. "A general allegation of ignorance at one time and of knowledge at another are of no effect. If the plaintiff made any particular discovery, it should be stated when it was made, what it was, how it was made, and why it was not made sooner. Carr v. Hilton, 1 Curt. 230 [Fed. Cas. No. 2,436]. "The fraud intended by the section which shall arrest the running of the statute hust be one that is secret and concealed, and not one that is patent or known. Martin v. Smith, 1 Dill. 85 [Fed. Cas. No. 9,164], and the authorities cited. "Whatever is notice enough to excite attention and put the party on his guard and call for inquiry, is notice of everything to which such inquiry might have led. When a person has sufficient information to lead him to a fact, he shall be deemed conversant of it.' Kennedy v. Greens, 3 Myl. & K. 722. ""The presumption is that if the party affected by any fraudulent transaction or man agement might, with ordinary care and attention, have seasonably detected it, he seasonably had actual knowledge of it.' Angell, Lim. § 187, and note. "A party seeking to avoid the bar of the statute on account of fraud must aver and show that he used due diligence to detect it, and, if he had the means of discovery in his power, he will be held to have known it. Buckner and Stanton v. Calcote, 28 Miss. 432, 434. See, also, Nudd v. Hamblin, 8 Allen (Mass.) 130. "In Cole v. McGlathry, 9 Me. 131, the plaintiff had given the defendant money to pay certain debts. The defendant falsely affirmed he had paid them, and fraudulently kept the money. It was held that the plaintiff could not recover, because he had at all times the means of discovering the truth by making inquiry of those who should have received the money. "In McKown v. Whitmore, 31 Me. 448, the plaintiff handed the defendant money to be deposited for the plaintiff in bank. The defendant told the plaintiff that he had made the deposit. It was held that, if the statement were false and fraudulent, the plaintiff could not recover, because he might at all times have inquired of the bank. In Rouse v. Southard, 39 Me. 404, the defendant was sued as part owner of a vessel for repairs, and pleaded the statute of limitations. The plaintiff offered evidence that the defendant, when called on for payment, had denied that he was such owner. It was held that, as the ownership might have been ascertained from other sources, the denial was not such a fraudulent concealment as would take the case out of the bar of the statute." On the subject of prescription in general, the court in the same case says: "Statutes of limitation are vital to the welfare of society, and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity, and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together." Thus it is seen that the burden of proof is on the plaintiffs in nullity to show at what date the discovery of the fraud was made; and it is seen also that such information as ought to put the plaintiff on inquiry is sufficient to start the running of the prescription; and it is seen further that in this class of cases the plaintiff is held to "stringent rules of pleading and evidence." This stringency as to pleading does not obtain under our system of practice. Under our loose system of pleading, the mere negativing in general terms of the presumption which would otherwise arise from a comparison of dates of the date of the judgment sought to be annulled and of the date of the filing of the suit in nullity-would be sufficient. But there is no reason why the same stringency as to evidence should not obtain in our courts as in ordinary courts of equity, or in the courts of law, which, like ours, administer equitable relief against fraud; and therefore, when it comes to the evidence, to borrow the language of the court in this case of Wood v. Carpenter, "a general allegation of ignorance at one time and of knowledge at another is of no effect. If the plaintiff made any particular discovery, it should be stated when it was made, what it was, how it was made, and why it was not made sooner." Coming to the evidence of the plaintiffs, we find that five of them did not testify at all, and that the five who testified are exceedingly vague in their statements. The fact that the attorneys who represented them in the suit were possessed of the information more than 18 months before the filing of the suit made it doubly incumbent upon the plaintiffs to discharge satisfactorily this burden placed upon them by the law to show the circumstances under which, and, as far as possible, the exact date when, they did acquire the formation. Now, let us see what their testimony is: Dr. Arthur Choppin testifies that he employed counsel "about May, 1900, I think it was." That the first knowledge he had of the alleged fraud was "within this year." He was examined May 31, 1901. His communications with Judge Sherburne were by letter. That the date of the correspondence was "about May last." inite information they had as to the facts of the case was when they read their own petition in the newspapers. The written amicable demand made by the plaintiffs upon the defendant bears date May 12, 1900, and therefore antedates the powers of attorney. Judge Lazarus testifies that the firm of Lazarus & Luce had been professionally retained prior to the execution of the powers of attorney, but he cannot remember the date of the employment. We make from the testimony of Mr. Geo. W. Flynn the following extract: "Q. I notice you have produced a power of attorney to you by Mrs. Covarrubias, which is dated 24th April, 1900. That power of attorney was in response to a letter, I presume, written by you to her? A. Yes, sir. Q. Do you recollect the date of that letter? A. I will tell you the transaction. I don't suppose the transaction occupied five minutes altogether. You can figure: Take the date of the receipt of the letter and the date of the power of attorney, and you can figure about the time I wrote the letter. I guess I wrote that letter about the middle of April. Mr. Sherburne Choppin called at my office at one time; he was waiting some time in the antein-room, and finally came in, and he introduced himself as Mr. Sherburne Choppin; I think he said Mr. B. B. Howard told him to come and see me; I asked him what he wanted to see me about, and he said he heard that I knew something about the succession of Dauphin; I told him I had little or no information. I think that statement I afterwards reiterated to Judge Clegg upstairs in the clerk's office, and I told him I had heard there was something wrong in the succession of Dauphin, by which the heirs did not get their rights; I knew no particulars then, knew nothing about it. I mentioned the matter to Judge Lazarus, and Judge Lazarus told me he was satisfied there was something wrong. He asked me then would I take his case; I told him I did not see what good it would do to take his case, as he was only one heir, and there were several, and I would not undertake to take a suit for his account, and carry on the litigation without something tangible. He then said he had a sister in Berlin, and they together represented a onehalf interest; he asked me would I write to her, and I said I would; I am not sure whether I wrote, or he did, to Mrs. Covarrubias; at any rate, I forwarded the power of attorney to her; it came back with a note stating her husband refused to sign it with her, and she wanted to know if there was any law in Louisiana by which I could use a power of attorney without her husband's signature. That's the full extent of my communication with Mr. Sherburne Choppin and Mrs. Covarrubias. Q. The postmark on the back of the envelope in which the power of attorney was returned to you by Mrs. Covarrubias seems to me to read 'Berlin,' something like Miss Emma Choppin does not remember the date: "Within a year, I imagine;" "within the last year, I would say." Does not remember the date. One or two letters may have passed before the power of attorney was signed. (Date of power of attorney, May 12, 1900.) Clifford Choppin: "About a year ago, I think;" "within the last year." Sherburne Choppin: "I was asked to call at his office [Mr. G. W. Flynn's] to see him." "Q. When was that? A. That was shortly before signing this power of attorney." (Date of power of attorney, May 12, 1900.) Miss Marie Choppin: "I couldn't say; I don't remember when I first learned of the alleged fraud. Q. Is it a year ago? A. I could not say exactly the time; I think it must be within a year." The power of attorney was signed "some days," "I suppose a day or two," after it had been received for signature. The matter had been a matter of correspondence. Mrs. Estelle Choppin Fisher does not remember when Judge Sherburne was engaged. The power of attorney will show. Knew nothing previously. All five of the plaintiffs say the first def 'April 24.' Isn't that a fact? A. Yes, sir. Q. Showing it was made in Berlin on the 24th of April? A. Yes, sir. Q. And the postmark in New Orleans was May 7th? A. Yes, sir, the date received here. Q. Showing it took something like two weeks to get here? A. Yes, sir; I have another communication, substantially the same thing, shows ten to twelve days. Q. You have no way of fixing the date of the letter? A. That I wrote? Q. That you wrote to Mrs. Covarrubias, inclosing this power of attorney that she returned to you. A. No other way, except the figuring out the date, and deducting about twelve days from the postmark here. Q. This is the only communication you had with her? A. The only communication I had with her up to that time; yes, sir; and that communication, I recollect, was simply on note paper, and did not occupy three or four lines; I was dependent on her brother, Mr. Sherburne Choppin, advising her to give me the power of attorney; I knew that nothing I could say would induce her to give it to me; she was a stranger to me." Cross-examination: "Q. Isn't it a fact you hunted up Mr. Sherburne Choppin? A. It is not a fact. Q. Didn't you leave a note at his office asking him to call? A. I did not." Further on, on cross-examination, Mr. Flynn testifies that Mr. Sherburne Choppin employed him "about the 10th or 11th of April [1900]. Q. Possibly before that date? A. It may be, but I don't think." The suit was filed on the 8th of April, 1901. Judge Sherburne testifies as follows: "Mr. Lazarus informed me of the fact of the existence of these securities, and then I obtained the powers of attorney from the heirs a portion of them-to bring this suit. I do not recollect the exact time, some time in the early part of last year [1900], I think, or the latter part of the year previous [1899], a little while previous to the institution of this suit. Judge Lazarus communicated with me, and I went to work and got authority of the Choppin heirs to institute this suit. Q. Judge Sherburne, how long were you engaged in getting these powers of attorney after you communicated with Judge Lazarus? A. Well, it was several months. Q. You were several months engaged in getting these powers of attorney? A. Yes, sir; the heirs were distributed over a good scope of country, and it took me some time. Q. In writing to the heirs, did you inform them why you wanted the powers of atorney? A. Yes, sir; I gave them the facts I had been put in possession of. They were already informed, or, at least, they believed like I did, of the existence of missing securities." Further on, Judge Sherburne testifies as follows: "Q. I want to get this matter a little bit straightened out. As I understand, you had a moral conviction that a large amount of property had been kept out of the succession of Mr. Dauphin? A. Yes, sir. Q. You felt absolutely certain of it in your own mind, although you did not have legal evidence of it? A. Yes, sir. Q. And, with that conviction, you proceeded to make a compromise? A. Yes, sir. Q. Now, subsequent to that compromise, several years afterwards, you received a written communication from Judge Lazarus telling you that securities had been found. Is that a fact? A. Yes, sir. Q. You proceeded to get the powers of attorney of the heirs of Arthur Choppin, giving them the information which Judge Lazarus had given you, and these powers were to authorize you to bring the present suit? A. Yes, sir. Q. You were several months engaged in getting these powers of attorney? A. Yes, sir." As already stated, the communication of Judge Lazarus, or of Messrs. Lazarus & Luce, to Judge Sherburne, was of date October 14, 1899. This testimony is very vague. Mr. Flynn does not remember dates. He is not positive whether it was he or Mr. Sherburne Choppin who wrote to Mrs. Covarrubias for her power of attorney. He is positive that Mr. Sherburne Choppin called at his office and introduced himself and employed him, and that he did not look up Mr. Sherburne Choppin. Mr. Sherburne Choppin, on the other hand, was asked the question, "Where and when were you first approached by Mr. Flynn respecting these proceedings?" and he answered, "I was asked to call at his office to see him, sir." Dr. Arthur Choppin testifies that he is positive he employed counsel "within this year." Miss Emma Choppin, that she learned of the alleged fraud "within a year, I imagine"; "within the last year, I would say." Clifford Choppin: "About a year ago, I think"; "within the past year." Miss Marie Choppin: "I think it must be within a year." Now, these witnesses were thus testifying on the 31st of May, 1901. Their testimony would therefore make it that they had learned of the alleged fraud after the 31st of May of the previous year, whereas their powers of attorney bear date the 12th to 18th of May of the previous year. Therefore, according to their testimony as compared with the date of their powers of attorney, they first heard of the fraud or employed counsel after they had executed the powers of attorney. This illustrates the little value of such a vague and general statement as evidence, when bearing, as in this case, on a narrow margin of time, and when made after the lapse of a certain length of time. If it bore on a wide margin of time, it might carry considerable, if not complete, probative force. man may be quite positive that a conversation of which he does not remember the exact date took place more than a year ago, but not so long as two years ago; but if he does not remember the exact date of a conversation A |