ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.
MR. JUSTICE GRAY delivered the opinion of the court.
This was a petition, filed May 8, 1884, in the fifth District Court of the parish of Ouachita in the State of Louisiana, to restrain the execution against land in that parish of a judgment rendered June 28, 1882, in favor of the defendants, by which that land (to which the petitioner claimed title under a conveyance from Mrs. Eliza W. Warfield, dated June 30, 1875) was subjected to a judicial mortgage arising out of a judgment for money, recovered by the defendants March 20, 1874, in a personal action against Mrs. Warfield.The petitioner alleged that the original judgment against Mrs. Warfield had been prescribed by virtue of article 3547 of the Civil Code of Louisiana, (which is copied in the margin,*fn1) and that a judgment
since recovered by the defendants, reviving that judgment, was null and void, for want of sufficient notice. The material facts bearing on the validity of the judgment of revival were as follows:
On September 11, 1876, Mrs. Warfield was adjudged a bankrupt under the laws of the United States, and William T. Atkins was appointed her assignee in bankruptcy, and as such sold the property in her schedule, and rendered his final account on October 15, 1879, but was never discharged from his duties as assignee. Mrs. Warfield never obtained her discharge in bankruptcy, and permanently removed in 1879 from the State of Louisiana, and died in Tennessee in 1881, leaving no heirs in Louisiana.
On February 8, 1884, the parish district court, upon the application of the defendants, appointed its clerk administrator of Mrs. Warfield's estate, and he took an oath assuming the administration. On February 9, 1884, the defendants filed a petition in that court under said article of the Civil Code, praying for a revival of the original judgment against Mrs. Warfield, for the appointment of a curator ad hoc, and for a citation to such curator, to the administrator, and to Atkins, assignee. A curator ad hoc was accordingly appointed, and he and the administrator waived citation and appeared and answered. Atkins was served with a citation, and also appeared and answered, denying all the allegations of the petition. Judgment was thereupon rendered, on February 20, 1884, reviving the original judgment, and in March, 1884, was duly recorded and reinscribed.
In the case at bar, the court refused the injunction prayed for, and gave judgment for the defendants, and this judgment was affirmed by the Supreme Court of Louisiana.
The petitioner sued out this writ of error, which was allowed by Chief Justice Bermudez, who added this memorandum: "In this case the court has passed upon no question, except the method of interrupting prescription on a judgment provided by the statute of the State, a matter within the arbitrary control of the State legislature, and involving no question of due process of law. Even as to this question, we have
simply held that the judgment of revival could not be questioned in the present form of action. I do not consider that any Federal question properly arises and was passed upon in the case; but as one was presented which, it is claimed, might be considered to exist by the United States Supreme Court, I grant the order."
The grounds upon which the jurisdiction of this court is invoked by the petitioner are that the state court, by holding that the citation to Atkins as assignee was valid and effectual to support the judgment of revival, deprived the petitioner of his property without due process of law, in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States; and construed the Bankrupt Act of the United States, and article 3547 of the Civil Code of Louisiana, so as to make them unconstitutional by thus depriving him of his property; and disregarded section 5057 of the Revised Statutes of the United States, which provides that "no suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee," and thereby denied a right and immunity claimed by the petitioner under the Bankrupt Act of the United States.
But the judgment of the Supreme Court of Louisiana, as appears by its opinion, copied in the record, and reported in 40 La. Ann. 645, as well as by the Chief Justice's memorandum, above quoted, did not pass upon the question of the capacity of the assignee to represent the bankrupt in the proceedings to obtain the judgment of revival; and merely held that this question could not be presented and decided ...