This principle has held firm even when the purchaser at the sale was the judgment creditor. See Mountz v. Dyer, 104 So. 123, 124 (La. 1925); Jefferson v. Gamm, 90 So. 682, 684 (La. 1921); see also Holland, 148 La. at 1003. Although the modern-day law of restitution would apply to most situations involving successful appeals, the longstanding case law specifically dealing with the sale of property while a devolutive appeal remains pending is dispositive of the issue.

This court has held in several fairly recent cases that the taking of a devolutive appeal implies the right to have the judgment appealed from executed pending the appeal, and the obligation to refund. Citizens' Bank v. Bellamy Lumber Co., 140 La. 497, 73 So. 308; Dyer v. Mountz, 157 La. 316, 102 So. 413; Mountz v. Dyer, 158 La. 383, 104 So. 123. The judgment ordering the property sold to effect a partition thereof was signed on April 23, 1934.

Defendant has taken a devolutive appeal from the executed order for the sale of the property, on the ground that he has not been legally cited, as a curator ad hoc was appointed by the court below to represent him in the executory proceedings, on the alleged insufficient allegation in the petition for the writ of sale "that defendant is temporarily out of the parish of Caddo, and has no agent or any legal representative in said parish, and no fixed place of residence, nor person living there competent to receive service of process." It appears, from an application in the record to consolidate the present suit with the suit of L.J. Mountz v. F.L. Dyer et al., 104 So. 123, No. 25900 on the docket of this court, that an action of nullity to rescind the sale made under the executed order in this case is now pending in the latter suit in this court on suspensive appeal. The application to consolidate these two suits, originally granted, has been set aside. 158 La. —

To support the position it takes here, Green Thumb refers us to Cook v. Deshautreaux Klein Pediatric Clinic, 294 So.2d 591 (La.App. 4 Cir. 1974), and Mountz v. Dyer et al., 158 La. 383, 104 So. 123 (1925). We have decided that neither of those cases is applicable here.

This court gave application to that doctrine in the recent case of Item Co., Limited, v. St. Tammany Hotel et al., 175 So. 421, where the citation, made as if upon a commercial partnership, was considered as apparently defective where the pleadings showed that the suit was against a firm operating a hotel as an ordinary partnership. Counsel for appellee also contend that by appearing in the lower court and asking for a devolutive appeal without restricting that appearance to an attack on the legality of the service of citation, and without setting up the nullity of the judgment on that ground, the defendant has waived its right to question the legality of the judgment on appeal for want of citation, and counsel cite Mountz v. Dyer et al., 158 La. 383, 104 So. 123. We think, however, that the basis of attack here is different, that it is aimed at want of citation; if there was no citation, there was no valid judgment, and we think its nullity could be asserted at any time and anywhere.