23 La. Ann. 26 | La. | 1871
This suit is brought to annul a judgment rendered, iu favor of Almira Dubois, executrix of the last will and testament of •Oliver Dubois, against William Mish, by the Fifth District Court of Now Orleans, on the seventeenth of June, 1865, for $10,761 68, with eight per cent, per annum interest from the first of June, 1859, until 'paid. The alleged grounds for annulling the judgment are:
Pirst — That the power of attorney to McClellan (on whom citation ' was served) did not authorize him-to stand in judgment as a defendant. Second — That McClellan, being executor of Dubois, as well as the agent of Mish, occupied a position which debarred him from representing Mish in a matter in which the estate of Dubois wTas interested, and his conduct was collusive.
Third — That the power of attorney of McClellan was revoked hy the insanity of Mish and the proceedings for his interdiction in the
For answer, the defendants denied all the allegations in the petition; they alleged that the proceedings in the Second District Court were .absolutely null and void, coram non judice; and that the plaintiff and her husband have acquiesced in the judgment and recognized its validity.
The substance of the allegations of the plaintiff is, that Mish, the ■debtor, was not legally cited.
We think the proceedings in the Second District Court, fortheinter■diction of Mish, were null and void, because he was never cited. His domicile was New Orleans, and he could not be sued there by the appointment of a curator ad hoc. The law does not authorize the appointment of a curator ad hoc in such a case. Article 391 [384] C. <3. directs that “ the interdiction may be solicited by any stranger, ■or pronounced ex officio by the judge, after having heard the counsel oj the person whose interdiction is prayed for, whom it shall be the duty ■of the judge to name, if one he not already named hy the party." This court held, in Stafford v. Stafford, 1 M. N. S. 551, “that the party, ■souyht to he interdicted., must he notified." And, in Segur v. Pollerin, this ■court said. “It is alleged that Pellerin is over twenty-one years of age; and it is sought not only to deprive him of the control of his property and person, but to hold him up to the world, as an idiot or a maniac, without his over having any notification of it. Such a doctrine would put many eccentric but sensible men completely at the mercy of any one who, through malice or error, might commence proceedings to interdict them.” 16 La. 67.
Even if there had been a notification to Mish, there-never was judgment of interdiction pronounced; and the mere institution of the suit did not suspend or revoke the power of attorney to McClellan. C. C 3027 [2996
We can not perceive the force of the objection that McClellan, the agent of Mish, could not be cited to defend a suit instituted by Mrs. Dubois, one of the executors of Oliver Dubois, because ho was a co-executor. There is no evidence of collusion; nor is it alleged that any just defense existed against the plaintiff’s claim, which ho neglected to make,
A careful scrutiny of the- power of attorney to McClellan satisfies us, that Misil intended to confer upon his agent ample power to do everything in relation to his property and rights which occasion might require, either for the protection or alienation of his property, to borrow money, grant mortgages, execute notes, make settlements of
Furthermore, it appears from the record, that the plaintiff has acquiesced in the judgment by paying a part of it. This involved a renunciation of the means and exceptions that might have been opposed to the payment. C. P. 612, 567; C. C. 2252; 2 La. 265, Fluker v. Lacy; 4 Rob. 127.
It is therefore ordered and adjudged that the judgment of the District Court be avoided and annulled, and that there be judgment in favor of the defendant, rejecting the plaintiff’s demand and dissolving the injunctions, with ten per cent, on the amount of the judgment, as general damages. It is further ordered that the plaintiff pay the costs of both courts.
