George v. Fitzgerald, 12 La. 604

George v. Fitzgerald

12 La. 604 | La. | 1838

Martin, J., delivered the opinion of the court..

This is a redhibitory action against the defendant, who resides in the state of Virginia, upon a sale made by him of several slaves, to the plaintiff, in this state. A curator ad hoc was appointed to the defendant, under the fifty-seventh article of the Louisiana Code, which provides for such an appointment, when the defendant resides out of the state, and has no agent or attorney therein; and also in pursuance of the 116th article of the Code of Practice, which contains a similar provision.

The curator ad hoc filed a plea to the jurisdiction of the court, which was sustained; the suit dismissed, and the plaintiff appealed.

It has been contended on the part of the appellee, that a curator ad hoc was improperly appointed, because the defendant had neither property or an agent in the state. That the article 57, of the Louisiana Code, must be taken in connexion with those which precede and succeed it, and they all relate to property left by an absentee. He also relied on article 414, to explain this article. He further contended that the suit against a person who resides out of the state and has no property in it, would seldom be available, as it would not be respected out of the stale, and appeared unnecessary in this, for the purpose of interrupting prescription. 1-Ie cites the cases of Morgan as. Robinson, 12 Marlin, 76, and Guillet vs. Erwin, 7 Louisiana Reports, 580.

The District Court, in our opinion, erred. The first chapter of the Louisiana Code, which treats of the curator-ship of absentees, provides curators for the benefit of those persons, in order that their estates might be administered and their interests protected. The article fifty-seven of that chapter, afterwards provides curators to them, in particular cases, for the benefit of those persons who may have suits to institute against absentees, and are unable to commence them, because the absentee cannot be arrested, nor his property attached, or citation served, either personally or left at his domicil. The case of Morgan vs. Robinson, in which the court held that the plea of prescription could not avail *607the defendant, because by withdrawing from the state, without leaving property in it, he had prevented the plaintiff from instituting his suit, was determined before the promulgation of either the Louisiana Code, or Code of Practice. At t hat time the appointment of a curator acl hoc to an absentee was not authorized by law. The plaintiff had been guilty of no laches, and instituted his suit as soon as he could after the return of the defendant to the state. In the casé of Guillet vs. Erwin, it was not urged that the plaintiff might have interrupted the prescription by a suit, and the appointment, of a curator ad hoc, under the 57th article of the code. The court did not notice this .circumstance, which probably would have induced it to support the plea. But, admitting the appointment of a curator ad hoc, and service of citation on him, are not needed -for the interruption of prescription they may be of great utility to a party, who, by delaying his suit, may be in danger of losing the evidence which enables him to support it, by the death of the party or his witnesses.

In the case of Guillet vs. Erwin, (7 Louisiana Reports, 580,) if it had been urged that prescription would have been interrupted by the appointment of a curator acl hoc to the defendant, the pica of prescription might probably have been supported. So, where a defendant resides in another state, and never had any agent or domicil here, and has no property or interest in this state, he may nevertheless he sued here, in a personal or redhibitory action by the appointment of a curator acl hoc to defend him.

Many arguments have been used to show the inutility of proceedings against an absentee in this manner, and the danger which may result from it. They no doubt were offered and considered by the legislature, and did not prevent the adoption of the provision contained in the article under consideration, and cannot authorize the court to disregard it.

In the case of Zacharie vs. Blandin, 4 Louisiana Reports, 154, we held that a curator ad hoc was properly appointed to represent the defendant, who resided in Tampico, and who had no agent within the slate, and to whose estate no curator had been appointed. The article 57, already cited, authorizes the appointment of a curator ad hoc, perhaps, even in the case of an absentee who has property in the state, and gives to the creditor the double remedy of a suit by attachment., or by service of citation on a curator ad hoc.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed, the plea to the jurisdiction overruled, and the cause remanded for further proceedings, according to law; the defendant .and appellee paying the costs of the appeal.