89 So. 687 | La. | 1921
Statement of the Case.
N. Batson, a resident of Mississippi, brought suit in the district court, by attachment, against the Stewart-Bell Lumber Company, formerly a commercial partnership which, with its members, were domi- | ciled in Mississippi, the property attached be
Opinion.
The judge a quo appears to have confounded the rights of an intervener with those of a defendant reconvener, and to have overlooked -the fact that -the judgment by default had been entered against the nonresident defendant, though the person named as curator ad hoc to represent him had not been notified of his appointment, and neither he nor his client had been cited.
But “the plaintiff who is in court is bound to take notice of the demand in reeonvontion, and the law raises an issue on that demand, without an answer in writing.” It is not required, therefore, that an answer containing a reconventional demand should be served' on the plaintiff. Hunter v. Spurlock, 3 La. 100, 22 Am. Dec. 165; Suarez v. Duralde, 1 La. 266; Spalding, etc., v. Wallett & Cohen, 10 La. Ann. 105; C. P. arts. 328, 329. On the other hand, C. P. art. 393, requires the petition of intervention to be “served on the party against whom it is directed, in order that he may answer to the same in tlio delay given in ordinary suits’,” and when it is not put at issue by proper service, no evidence is admissible in its support. Garland’s Code of Practice, pp. 305, 306, and authorities there cited. Where, however, a defendant, who has a claim which he might set up by way of reconvention prefers to assert it by an ordinary and independent action, he must proceed as in any other ordinary action, and, even though he were to cite a curator ad hoc appointed to represent an absent defendant, he would not be entitled to a judgment save to the extent of the property of such defendant, which had been-taken into possession of the court; and, one who, like the plaintiff herein, has, intervened in a pending suit, and obtained judgment, and then sets up another demand against one of the parties to such suit, in a separate action, is assuredly in no better position.
It is therefore ordered that the judgment appealed from be set aside, and that there now be judgment in favor of defendant, rejecting plaintiff’s demands and dismissing this suit at her cost in both courts.