¶1The petitioner claims from the defendants the amount collected on a fieri facias issued upon a judgment qbtained by Rebates against Miller, and also damages. The allegation is that the judgment and fieri facias were absolutely null and void, that the Sheriff and seizing creditor were so informed, and the amount was paid under protest to that effect.
¶2It appears from the allegations of the petition, to which there was a demurrer, that Miller had made a cessio bonorum and placed Rebates as a creditor on his bilan, of which Rebates was duly notified. Subsequently Rebates sued Miller for the same debt; Miller was personally cited; a judgment by default was taken and confirmed, and it was upon execution of this judgment Miller paid. We concur with the District Judge in the opinion that these facts form no basis for the present action. It is inadmissible to say the judgment was absolutely null and void, a proposition which the appellant concedes to be indispensable for the maintenance of his suit. When cited, he should have pleaded his cessio bonorum as exempting him from judicial pursuit; and if his creditors could show no legal cause to take the case out of the usual category, the plea would have prevailed; not having done so, it is now too late. The cases cited do not sustain the proposition that Miller, as between himself and Rebates, was incapable of standing in judgment in the suit in question, although good authority for the doctrine that quoad property surrendered by the cessio bonorum or the interest of the insolvent estate, Miller was incapable. We are aware of no case authorizing us to hold that the judgment in question was absolutely null and void. Occasional obiter dicta on which counsel have relied must be controlled by reference to the circumstances of the cases in which they were used and the points really in controversy.
¶3Judgment affirmed, with costs.