Cooley v. Seymour

| La. | Mar 15, 1836

Martin, J.,

delivered the opinion of the court.

In this case a motion is made to dismiss the appeal. Its dismissal is prayed for on the ground that it was taken more than two years after the judgment was rendered, and for want of a legal service of the citation. . ■

It is true, more than two years had elapsed after the judgment appealed from was rendered, before the appeal was taken, but two years had not expired after judgment was signed, until the appeal'was granted. A judgment is inchoate only, and no appeal lies from it until it is made perfect by receiving the signature of the judge. No prescription runs against a party before he has acquired the faculty of acting and asserting his rights.

Two citations issued in this case, one was served on the appellee’s wife at her residence in the parish of Point Coupée, and the place of her husband’s domicil, the sheriff attesting be was absent from the parish, and as was believed, absent from the state. The other citation was served on the appel-lee’s attorney, in the parish of West Feliciana, the sheriff attesting the fact that the appellee was out of the state.

The occasional absence of the appellee from the state, does not dispense with the service of citation at his domicil. An affidavit, showing that at the time of service of citation on the counsel for the appellee, the latter resided in another state, will make the service good. Errors assigned as apparent on the face of the record, that interest was allowed on an unli-quidated claim; that the land was ordered to be seized and sold to pay for the value of improvements allowed to the party evicted, and compensation made to the curator ad hoc, all in the samejudgment, are well taken. The fact that, UerTujTand'tried day Vom^tiiat fixed on for its itself fatal.0*1 °f When a cm-a-a°swom attorney wUMj^'présu-med to have, done his duty, when the contrary does not appear.

The appellant has prevented the objection that might be made to the service of citation, as evidenced by the sheriff’s return of the absence of the appellee, (which if occasional only, does not dispense with a citation at his domicil,) by an affidavit that, at the time of the service, the appellee resided in Philadelphia. The appeal must therefore be sustained.

The appellant further assigned, as error apparent on the face of the record, that interest was allowed, although the plaintiff’s demand was unliquidated; that the land was ordered to be sold to satisfy a judgment for the value of the improvements made on it; and finally, that compensation was allowed to the curator ad hoc, to be taxed in the costs and paid by the defendant.

The errors thus assigned appear to be well taken, but there are others assigned as being apparent on the face of the record, which present a very different character. The record shows that the cause was tried on a different day from that which had been fixed for its trial, and, it is said, in the absence' of the curator ad hoc. It is evident that this gentleman neglected to correspond with the'defendant, who resided in England.

It often happens that causes are tried on days different from those fixed on for the trial, but this court has decided that this circumstance.is not of itself fatal. The absence of the curator ad hoc, at the time of the trial, is inferred from ^Ie circumstance that there was no cross-examination of the P^a'Q^’s witnesses, and none introduced on the part of the defendant. But the plaintiff has shown that the curator ad hoc was present, and moved that he be allowed a compensation for his trouble, which was ordered.

The curator was a'sworn attorney of the court, and must ke Presumec*t0 have done his duty when the contrary does not appear.

The curator ad hoc is responsible for his neglect to the party whose interests he is appointed to defend, and his faults or misconduct are not to be visited upon, the adverse party.

He may have honestly concluded, in this case, in which he had only to see that the value of the improvements'of the plaintiff, put on the land from which he had been evicted, should be accurately made and ascertained, that it was extremely improbable that any commission sent to England could afford any useful evidence or assistance in the cause. The plaintiff’s counsel has very properly urged in argument, that the curator ad hoc is responsible for his neglect to the party whose interests he is appointed to defend, and his sins, whatever they may be, are not to be visited upon the plaintiff, imputed to his misconduct- or his fault, nor to be answered for by him.

On the merits, the evidence shows that the plaintiff made out his case, and established his claim for improvements.

It is, therefore, ordered, adjudged.and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the plaintiff recover from the defendant the sum of two thousand five hundred dollars, with costs in the District Court, and that he pay those of the appeal.