38 La. Ann. 232 | La. | 1886
The opinion of the Court was delivered by
This is a suit for the removal of the defendant as admintrator of the succession of Seth Bedford, opened in the year 1874.
The principal complaint against him is that he permanently resides out of the State of Louisiana, that he has been absent continuously
Citation was prayed for and was served on I. F. Stephens, a resident of the parish, alleged to be the agent and attorney in fact of the absent and non-resident administrator. This action was met on the part of the defendant by peremptory exceptions, one of which was that I. F. Stephens was not then and had never been his agent as alleged.
He also pleaded the exception of no cause of action, and several other exceptions which it is useless to enumerate.
The exception of no cause of action v as overruled, and by order of the court, all the other exceptions were referred to the merits.
At a subsequent term of the court a default was entered against the defendant, and later on, during the absence from sickness of his counsel, a trial took place and a judgment was rendered overruling all the exceptions, removing the defendant as administrator and ordering him to file an account of his administration within a specified time.
Defendant appeals from that judgment, and has embodied the substance of his exceptions in an assignment of errors, in which he also charges error in the ordei of the court referring his exception denying the agency of Stephens, to the merits. That ground is sustained alike by reason and by law, and it will decide the fate of the controversy in the present appeal. The habit of referring exceptions which go to the very foundation of the suit, to the merits, by which process parties are unjustly subjected, to heavy costs, in procuring unnecessary evidence which burdens the record on appeal, is unfortunately growing to an alarming extent in the District Courts of the State.
While it must be deprecated generally, it must be specially censured when the exception which is referred to the merits, is one which involves the legality of the citation, without which there can be ho suit and therefore no trial. That is the nature of the question presented by Defendant’s exception to the capaeitiy of Stephens as his alleged agent to stand in judgment for him.
If Stephen’s was not the agent of Hafley, as alleged, the citation served on him was an absolute nullity, and the defendant was not before the court. If there was no party-defendant there were no merits to w.hich the exceptions could be referred.
The injustice of such a ruling is as great to the plaintiff as it is to .the .exceptor; it almost amounts, to a denial of justice.
The evidence which we find in the record shows conclusively that Stephens was not the agent or attorney in fact of the non-resident
The mere statement of the proposition carries with it the nullity of the judgment.
It may be true, as contended by appellant’s counsel, that Halley, the absent administrator, had no authorized agent to represent him in court in matters connected with the succession, and that by means of which omission, he has actively violated the law and unpardonably neglected his duty.
But it is yet more undeniable that no judgment can be rendeied against him until he is properly and legally brought before the court.
As these considerations have successfully sapped the foundation of the whole proceeding, the superstructure must crumble to the dust, and nothing is left to do but to brush away the debris.
It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, and that plaintiff’s action be remanded to the lower court for further proceedings according to law, that he pay costs of appeal, and all costs from the service of citation, other costs to abide the final determination of the case.
