WARREN vs. HALL'S EXECUTOR, 10 La. 377

Bullard, J., delivered the opinion of the court. The appellee in this case filed an opposition to the tableau of distribution presented by the defendant and appellant, as executor of the last will of John Hall, deceased, on the . ground that the executor had omitted to .place him on the tableau as a creditor of the estate. The opposition filed, sets forth other grounds not necessary now to notice. He alleges that he is a creditor of the estate, as evidenced by a judgment rendered in his favor against the executor, in the Circuit Court of Scott County, in the commonwealth of Kentucky.

The defendant, after setting up an exception to the mode of proceedings, by way of opposition to the tableau, which has not been noticed in the argument, answered, by denying that the judgment in question has the authority of the thing adjudged against him, or against the estate administered by him.

He further alleges, that if any such obligation as that declared on in the Court of Kentucky ever existed, it was extinguished by confusion, John Hall, the obligor, being heir of John Hall, senior, for the benefit of whose estate it was contracted; that the payment of no part of that obligation could be coerced, until after a partition of the estate of John Hall, senior; and, finally, that if any sum was ever due, the action is barred by prescription.

The principal question which has been discussed in this court, is, whether the judgment in the court of Kentucky be conclusive upon the defendant as a party to those proceedings. This court has recently recognized the well settled doctrine, that a judgment rendered in another state is not 3 J ° conclusive evidence against the defendant, unless it appear that he had been served with process, or had otherwise appeared. Without such service or appearance the judgment is not to be deemed valid. Patterson vs. Mayfield’s curator, ante 220. 1 Kent’s Commentaries, 261, and Notes.

This question must be settled by inspection of the transcript adduced as evidence in the cause. From this record it appears that the defendant is a citizen of Louisiana; that no personal service of process was ever made on him, and that he filed no answer to the'bill in chancery. Publications appear to have been made in a newspaper published in Kentucky, but, it is not shown, that the defendant had any knowledge of them.

Even when the record recites that the parties appeared by their attorneys in a suit in chancery of another state, the record . and decree are insufficient evidence of the demand in this, when it is shown there were other parties, and when the decree expressly states the defendant (who is a non-resident) had wholly failed to enter his appearance agreeably to law and the rules of court, notwithstanding publication of notice to do so, and the complainant’s bills were therefore taken as confessed.

This court is not prepared to say, that a judgment rendered against the heirs for a debt of the ancestor, is conclusive upon the executor. ' It has been contended, that the statement on the records of the court, that the parties appeared by their attorneys, is sufficient to show that the defendant appeared.

Whatever weight we might think such a recital entitled to, if there were no other parties but the one now before the court, we are of opinion that it is entitled to little consideration, when it appears by the record, that there were other parties who had answered to the bill, and were regularly before the court. But the decree pronounced in the case repels any presumption which arises from the above statement. The court say, that notwithstanding the publication of notices, the defendant, MulhoIIan, executor of J.

Hall, deceased, had wholly failed to enter his appearance, agreeably to law and the rules of the court. The bill, amended bill, and bill of revivors, were therefore taken as confessed against all the parties who had failed to appear and answer. It has been further contended by the appellee, that the judgment recovered in Kentucky against the heirs of the defendant’s testator, who were duly cited, was against them for a debt of the ancestor, and therefore was a good and valid claim against his succession, and could not be opposed by the executor.

We are not prepared to'say, that a judgment rendered against the heirs for a debt of the ancestor, is conclusive upon the executor. If this were true, without restriction, it would be in the power of heirs, by collusion with pretended creditors, to defeat the payment of debts justly due, and the distribution of the assets, according to a tableau which the Court of Probates alone has authority to sanction. In presenting a tableau, the executor represents all the creditors named in it, and it will not be pretended that such a judgment is conclusive against other creditors.

But even if a final judgment, pronounced by a court having jurisdiction, were conclusive against the executor and other creditors, it appears to us, that the judgment or decree pronounced in the court of Kentucky is not shown on the face of the record to be final, even against the parties.

In' the concluding part of the decree, the court says: “ but by consent of the complainant, leave is given the defendants, at the next term of this court, to show cause, if any they can, to set aside this decree, and the court reserves to itself full power, upon cause being shown at next term, to set aside this decree.” The decree appears to have been pronounced on the 18th of June, 1831, and on the 28th of the same month, ten days after its rendition, the transcript in the record was made out and certified by the clerk.

It is clear, that at the time the copy was furnished, something more was required to be done, before the decree could have any effect, and it was still under the control of the court as'a judgment nisi. We are therefore of opinion, that the Court of Probates erred, in sustaining the opposition, and directing the claim of the plaintiff to be placed on the tableau. It is, therefore, ordered, adjudged and décreed, that the judgment of the Court of Probates be annulled, avoided and reversed, the opposition rejected, and that the opponent and appellee pay the costs of both courts.