64 So. 150 | La. | 1913
November 22, 1904, Mrs. Pearl L. Dillon et al. instituted suit in tbe district court of tlie parish of Caddo against Ransom E. Jacobs, Jr., and Cora Lee Jacobs, minor heirs of Ransom E. Jacobs, residents of the state of Tennessee, for a partition, by licitation, of certain tracts of land situated in said parish.
The court ordered that J. A. Thigpen be appointed tutor ad hoc for the minor Ransom E. Jacobs, Jr., and Jas. M. Foster, Jr., tutor ad hoc for the minor Cora Lee Jacobs.
On the same day each of them accepted the appointment of tutor ad hoc and took an oath to discharge his duties as such to the best of his knowledge. Civ. Code, art. 313.
After qualifying, the tutors ad hoe signed the following indorsement, to wit:
“I acknowledge service of this petition and waive citation.”
Each tutor ad hoc filed an answer to the petition.
There was judgment ordering a partition and sale of the property described in the petition. Defendant, by mesne conveyances, has become the possessor of the property upon which it has built railroad tracks.
Ransom E. Jacobs, Jr., and Cora Lee Jacobs, having recently attained their majority, now claim the ownership of an undivided one-sixth interest' in the property, and ask that they be recognized as the owners thereof, and that defendant be condemned to deliver said property to them, with rents and revenues, or that they have a money judgment for the value thereof.
Defendant answered that it had a good and valid title to the property, that, if there were any irregularities in the sale, they were cured by the prescription of five years; and it further pleaded the prescription of ten years. It also called its vendor, W. F. Dillon, as warrantor, to defend the suit, and asked that, in the event it is .condemned, it have judgment against said Dillon in whatever sum may be awarded iilaintiffs.
W. F. Dillon, warrantor, excepted on the ground that the judgment in the partition suit under which the sale of the property was made could not be attacked collaterally. This exception was overruled, and warrantor answered, setting up a valid title, and pleading the prescription of one, five, and ten years. Ten years have not elapsed since plaintiffs attained their majority.
There was judgment in favor of defendant, and plaintiffs have appealed. The railroad company has also appealed.
In their petition, the plaintiffs refer to the judgment in the partition suit and declare it an absolute nullity and the sale thereunder as being invalid, for the reason that said judgment was rendered against them without citation and contrary to law.
The record in the case of Pearl A. Dillon et al. v. Minors Ransom E. Jacobs, Jr., and Cora Lee Jacobs, residents of the state of Tennessee, shows that J. A. Thigpen was appointed tutor ad hoc to the minor Ransom E. Jacobs, Jr., and that J. M. Foster, Jr., was appointed tutor ad hoc to the minor, Cora Lee Jacobs, and that they represented said minors in that proceeding. It further shows that they took the necessary paths; and on the same day that they acknowledged service and waived citation in the following words:
“I acknowledge service of this petition and waive citation. J. A. Thigpen, tutor ad hoc for Ransom E. Jacobs, Jr. J. M. Foster, Jr., tutor ad hoc for Cora Lee Jacobs. Nov. 22/94.”
The above language does not clearly indicate whether the petition was served or not, for that portion which waives citation might indicate that the service of the petition was also waived. The question is, therefore, whether the tutors ad hoc had the authority to waive citation or not.
Article 116 of the Code of Practice provides:
“If the minor, against whom one intends to institute a suit, has no tutor, the plaintiff must demand that a curator ad hoc be named to defend the suit. The same course must be pursued if the person intended to be sued be absent and not represented in the state.”
And under the subsequent article (964) the court may “appoint a tutor * * * ad hoc * * * to defend the minor * * * in the action.” Therefore the proper appellation for such appointee is tutor ad hoc. There is no real difference in the duties of a tutor ad hoc and a curator ad hoe. The responsibilities and about the same rules apply to both. Bienvenu v. F. & C. Ins. Co., 33 La. Ann. 209.
And article 195, C. P. provides that:
“If the minors, the interdicted or absent persons against whom the suit is brought, had no tutor or curator, and the plaintiff has had a special tutor or curator appointed to defend them in the suit, the service must be made on that curator in person, or at his domicile.”
The Code, on the subject under consideration, requires that service of the proceedings must be made on the tutor ad hoc or the curator ad hoc in person, or at his domicile. This notice or service is the citation; and the want of it is fatal. The statute must be construed strictly, as every law should be that derogates so much from the general principles of our jurisprudence and decides upon the rights of those who are incapacitated or absent. It is a privilege to allow a plaintiff to pursue such person in this way, and he cannot complain if he is required to follow exactly the formalities which the act prescribes ; and, above all, he cannot be permitted to neglect that proceeding which the law ■ has ordered as to serving the citation, which is to be the basis upon which all the subsequent proceedings in the cause rest.
In the case referred to in the pleadings, the attorneys, who were the tutors ad hoc appointed by the court, pleaded and went to trial on the merits of the cause. But the want of notice or citation is not cured by this action on their part. The defendant, who is sui juris, and domiciled in t~*s state, or his attorney, may alone waive the service of plaintiffs’ petition. C. P. art. 177. A tutor ad hoc, an appointee of the court, is without statutory authority to waive service of the petition or citation. Stockton v. Hasluck, 10 Mart. (O. S.) 472; Cormier v. De Valcourt, 33 La. Ann. 1168.
In the case of Hill v. Barlow, 6 Bob. 142, we hold that a curator ad hoc had no authority to waive service of citation.
The judgment against the minors being a nullity, the exception by the defendant that it could not be attacked collaterally was properly overruled. Decuir v. Decuir, 105 La. 481, 29 South. 932.
Defendants cite a line of authorities wherein the court has held that where it does not clearly appear that the curator ad hoc had waived service of the petition, and where it rather appears by some acknowledgment that there had been an actual service, the proceeding will not be treated as null; but these cases have no application to a suit where it is definitely shown that the curator or tutor ad hoc had waived service of citation.
Plaintiffs ask that they be declared owners of an undivided one-sixth interest in the land in question, and that they be put into possession thereof, or that there be judgment in their favor for the value of said land, with rents; but, on the brief filed in their behalf, they waive the claim to the land itself, and ask for a money’judgment in their favor.
“Should there be judgment for plaintiffs for rents and revenues on the property herein sued for, such rents shall be placed at 5 per cent, per annum on the amount of the judgment, from such date as the court may fix.”
It was admitted on the trial that the whole plot of ground in question, in March, 1897, at the time that defendant took the land for railroad purposes, and for which purpose it is still being used, was worth $2,100; and that its present value is $13,800.
In the ease of Pons v. Y. & M. V. R. R. Co., 131 La. 313, 338, 59 South. 721, we hold that the defendant having gone into possession in good faith, and remained in possession without objection until the suit was brought, plaintiff could not recover over and above the value of the land which'was then being used for railroad purposes, at the time defendant went into possession of said land. And this is the general rule, as laid down in Elliott on Railroads, §§ 985 and 989. Reference is made by Mr. Elliott to numerous decisions of the Supreme Courts of the several states of the Union. There is some contrariety of opinion on this subject; but the consensus of opinions appears to be that “the time of the actual entry upon the land for the purpose of building the road has been held to be the time to which an assessment of the land owner’s damages must relate.”
In two of the cases referred to by Mr. Elliott, the railroads went into possession of the land after taking the proceedings provided for by statutes, whereas the defendant here entered upon the land of plaintiffs without any expropriation proceedings. It held a conventional title, which, on its face, appeared to be valid, but which was invalid because of the want of citation in the suit hereinbefore referred to, in which a partition was decreed, and under which judgment the sale of the property had originally been made. Defendant, in entering upon the land, was ■ therefore guilty of a technical trespass. It should have strictly pursued the appropriate proceeding to condemn or expropriate.
Defendant would clearly have had the right to have expropriated the property in question, but it has not done so, and it did not pay in advance to the owners (plaintiffs), as is required, the value of said property. It has had the property and the value of the
Defendant, not having paid the price before it took possession, owes interest on that price.
This suit is entirely out of the ordinary. Plaintiffs waive their demand for the property with the rents and revenues, and they have agreed with defendant that should there be judgment for rents and revenues, that such rents and revenues shall be fixed at 5 per cent, per annum on the amount of the judgment. It is therefore not now a suit for the possession of property; but it is a suit for the value of the property, with rents and revenues, or interest, since the time of the illegal possession of the property by defendant.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there be judgment in favor of plaintiffs, and against defendant, the Kansas City, Southern & Gulf Railway Company, in the sum of $350, with 5 per cent, interest from March 1, 1897, with costs. It is further ordered, adjudged, and decreed that there be judgment in favor of the Kansas City, Southern & Gulf Railway Company and against W. F. Dillon, its warrantor, in a like amount, with costs, but without interest.
