¶1This suit against the succession of' Alexander Gordon was instituted in the Second District Court of New Orleans in May, 1866, to recover a certain draft and a sum- of money paid on the agreement of W. G. Bakewell, the executor, to sell'the plaintiffs the Mexican Gulf Railroad and the property belonging to said succession, which said *354agreement was never carried into effect by tile legal transfer of tlie titles of said property.
¶2The executors of Alexander Gordon excepted to the suit on the ground that the Second District Court was without jurisdiction rations materias, the succession having been opened in the Fifth District Court of New Orleans, which alone had jurisdiction of the case.
¶3The exception was overruled, and the case decided in favor of the plaintiffs. The defendants have appealed. The question of jurisdiction must first be considered.
¶4If the judgment was rendered by a court without jurisdiction it must be annulled.
¶5The succession of Alexander Gordon was opened in the Fifth Dis-. trict Court of New Orleans in 1848. That court alone had jurisdiction at the time this suit was filed in the Second District Court, unless the jurisdiction of said succession had been transferred to the latter court by the acts of 1853, 1855 and 1865, creating it a strictly probate court for the parish of Orleans.
¶6In the case of the State of Louisiana on the relation of W. G. Bako-well, executor, and Ann B. Gordon, executrix of Alexander Gordon, v. the Judge of the Second District Court, 20 A. 466, this question of jurisdiction was determined. The court decided that the several acts referred to, making' the Second District Court strictly a probate court, did not divest the other district courts of the parish of Orleans of their jurisdiction over the successions already pending before them; and that the jurisdiction of the succession of Alexander Gordon and of this cause did not belong to the Second District Court, but to the Fifth District Court. The writ of prohibition was made perpetual, restraining the Judge of the Second District Court from proceeding further in the matter of said succession and in the suit now under consideration, which was then pendí g before the court on appeal.
¶7Plaintiffs contend that since this appeal has been pending a law has been passed conferring the jurisdiction of this case on the Second District Court of the parish of Orleans, and therefore, under the circumstances, it would be a useless proceeding to avoid the judgment on the ground that the court which rendered it was then without jurisdiction.
¶8It is quite immaterial what court is now invested with the jurisdiction of the case; the validity of the judgment must be determined by the jurisdiction of the court at the time it was rendered.
¶9The Second District Court, as has been decided, had no jurisdiction at the time the case was tried, and the exception was improperly overruled. C. P. 164, 924, 986; 14 A. 333, 409.
¶10It is therefore ordered that the judgment appealed from be avoided and annulled, and it is now ordered that this suit be dismissed without prejudice to plaintiffs’ right to sue the succession of Alexander Gordon in the court now having legal jurisdiction thereof.
¶11It is further ordered that plaintiffs pay costs in both courts.