| La. | Dec 15, 1849
The judgment of the court was pronounced by
The main question presented in this case is, whether the District Court in and for the parish of West Baton Rouge has jurisdiction to issue process of attachment, to attach the property of Bernard Delle Piane, in the parish of East Feliciana. It appeal’s from the allegations of the petition and affidavit in the cause, and the petition of the applicant to this court, that Delle Piane was, at the date of the institution of the suit, domiciled in the parish of West Baton Rouge. It is however stated that he had abandoned the plantation which he had cultivated in that parish, and had removed from that parish; and that the plaintiff had just reason to fear that he would remove permanently out of the State. The affidavit annexed to the original petition declared that the allegations of the petition were true, and that the defendant was about to remove permanently from the State, and will so remove with his property unless detained by an order of attachment. Upon this showing the District Judge, sitting in the parish of West Baton Rouge, ordered, on the 5th October, 1849, that an attachment issue as prayed for, on giving bond, &c. In November following, the plaintiff presented a supplemental petition, in which, after refering to his previous petition and the process of attachment which he had obtained, he alleges that the property found in the parish was encumbered by previous liens and insufficient to satisfy his claim; that the defendant possessed other property in the parish of East Feliciana. It was therefore prayed that an order be granted for a writ of attachment, addressed to the sheriff of that parish. This petition was not accompanied by an affidavit.
The judge declined to grant the order, being of opinion that he was without jurisdiction. Therefore a petition, under oath, was presented to this court, applying for a mandamus to the district judge. In this petition the applicant declares that he has good reason to believe, and does believe, that Delle Piane is about leaving the State permanently, that the property already attached is insufficient to meet his claim; that his debtor has removed property to the parish of East Feliciana, where he owns and possesses it at this time; and that the district judge has refused to order the issuing of a Writ of attachment to that parish.
We are of opinion that, aside from the question of jurisdiction, the district judge might have properly refused the order applied for; because there was no showing under oath of the continued existence of the debt, and the necessity of the further process demanded. This is a sufficient reason for refusing the mandamus. But as the district judge based his refusal upon the ground of a want of jurisdiction, and as a formal application would be refused upon the same ground, we have thought propel’, in order to avoid a delay which might prejudice the plaintiff’s interest and a renewal of the application to this court, to express our views in some degree upon the question of jurisdiction in cases of attachment, as applicable to what we understand to be the merits of the plaintiff’s application. In doing so, we shall assume that West Baton Rouge was the legal domicil of the defendant at the institution of the suit. That it was until
If then the District Court of the parish of West Baton Rouge has acquired a personal jurisdiction over the defendant, either by a personal service (if citation upon him, or by a service of citation at his late residence, he, although absent from the parish, not having left the State nor acquired a domicil in any other . parish of the State, then, in our opinion, the district court would have the right to issue process of attachment to the sheriff of East Feliciana upon affidavit showing the insufficiency of the property attached, the continued existence of the debt, &c. For such process, when the defendant is personally cited, is not, as observed by Martin, J. in Williams v. Kimball, 8 N. S. 354, a mode of bringing suit, but a conservatory act, a remedy or incident, which may precede or accompany the action. See also C. P. 208, 209.
Viewed in this light, as a conservatory measure incident to the main action, there seems no reason why the jurisdiction of the court for the purposes of attachment, where the debtor is personally cited, should be confined within its territorial limits, any more than in the case of a fieri facias upon a judgment in personam, which undoubtedly may issue to any parish within the State.
There is a manifest distinction between the case supposed, of a court which has acquired personal jurisdiction, and that of a court whose jurisdiction being exercised only in rem, rests solely upon the property attached. In the latter case the power of-a court seems to us to be limited to its territorial limits. It acts upon the thing, not upon the person of its owner. Its jurisdiction is described from the seizure of the property, and its judgment has no vitality except against the thing thus subjected to its control. If there be no property within its territorial limits and no personal citation, no jurisdiction vests, and its process and decree would be merely null. See Jobson v. McRae, 3 An. 301. Brougham v. Ring, 2 An. 571.
In expressing the opinion that a court which has jurisdiction ratione persones, and has exercised it by citation, can extend the incidental remedy of attachment by issuing its process to the sheriff of another parish, we do not undertake to say in what mode the attachment thus levied may afterwards be enforced.
It not appearing that the district judge erred in rejecting the application, as made to him, for an order of attachment, it is therefore ordered that the petition for mandamus be dismissed at the costs of the applicant.