3 La. 449 | La. | 1832
delivered the opinion of the court.
The plaintiff states himself the creditor of Wright on a bottomry bond, on a steamboat, which has since been sold to a third party, who resides at. Alexandria, in this state. He prays that the master of the boat and Wright, be cited; that' the boat be sequestered; that he may have judgment; that his claim may be decreed to be a privileged one on the boat, and that she may be sold to satisfy the judgment.
The citation was served on the master alone. He replevied the boat, and pleaded the general issue. He, however, died before trial, and his death was suggested on the record.
It is difficult to ascertain the character of the present action. It has been contended it is one in rem; that judgment was sought against the appellant’s vendees or the present owners of the boats, represented by the master; nay, that the master represented the appellants also, and if the judgment against the latter be reversed, it may be affirmed as to the boat, or judgment be given against the owners, and the boat sold accordingly.
It has appeared to us, there is an insuperable objection to the affirming of the judgment against the appellant. Service on the master of the boat, put in command by his vendees, after the sale, cannot be considered as a service on him. He. would rather be the representative of the owners, if they were absent, and this interest is adverse to the appellant’s. The judgment against the latter must, therefore, be reversed.
There are two insuperable objections to the action being considered as one in rem. The owners are stated to be known residents of the state, and the Code of Practice, 284-5, appears to confine this action to cases in which the thing is abandoned, and the owner unknown or absent. There was no monition or notice to all persons interested, to come and answer. Id. 292. Such a notice alone, can be substituted to the ordinary citation.
We cannot give judgment against the owners. That the master may in certain cases represent the owner of the ship, may be true ; but when the owner is known, and in the state, the citation must be served on him, and cannot be legally so on the master. If this obstacle could be surmounted, another would present itself. The appellee has not prayed an amendment of the judgment in his favor against the owners, and they are not before us.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and that the action be dismissed, and the costs paid by the appellee in both courts.
