Mourain v. Beauvais

| La. | Feb 15, 1837

Bullard, J.,

delivered the opinion of the court.

The facts which led to the present controversy will appear by reference to the case of Cooley vs. Beauvais, decided by this court last January term. 9 Louisiana Reports, 85.

It appears, in the present case, that Beauvais ordered out an execution against Madame Mourain, to coerce the payment of a sum of five hundred dollars, allowed him by the District Court, as her curator ad hoc, which was levied on a slave belonging to her. She procured from the District Court an injunction to stay proceedings, on the allegation that previous to the issuing of the execution, the sum thus allowed had been paid to the attorney of Beauvais.

The defendant, in the injunction in his answer, admits he was appointed curator ad hoc, and that a sum of,five hundred dollars was allowed him for his trouble and expense in representing the plaintiff; but he denies that any part of the sum had been paid to his attorney, or that he ever authorized any agent or attorney to receive the same. He further alleges, that so far from having done so, the order of the District Court, making him that allowance, had been, on the 18th January, 1836, declared by the Supreme Court null and void, in a suit of T. J. Cooley against him. He therefore prays that the injunction may be dissolved, and that he may have judgment against the plaintiff and her security, jointly and severally, for the sum of five hundred dollars in damages. He further prays that T. J. Cooley may be made a party, and that should it appear that he had received the said sum from Madame Mourain, or her agent, in the name of, or as agent, or in any other character in which he may have assumed to represent the respondent, that judgment may be rendered in his favor against Cooley for that sum, with damages and costs.

The Court refused to issue process of citation to Cooley, and to make him a party, and a bill of exceptions was taken, and the injunction having been made perpetual, the defendant appealed.

We are of opinion the court did not err in overruling that part of the defendant’s answer, by which he sought to make *480Cooley a party, as in the case of simple or personal warranty. Cooley either was or was not the attorney of Beauvais, in obtaining the judgment which he sought to enforce. If he was, the payment to him was a good payment, as alleged by the plaintiff in her petition, and the execution issued wrongfully. If he was not, then we are brought to the question how far an agent, or curator ad hoc, can be permitted to obtain an ex parte judgment against his own principal, and enforce it by execution. In either case we see no necessity for the attorney, real or pretended, being made a party. The professed object for bringing him in, was to compel him to pay over the amount, if he had acted as attorney or. agent, or in any other way assumed to represent the defendant. That he was the attorney of record, on whose motion the allowance was made, is most manifest, and the defendant, by ordering out an execution, has ratified the act. But there is a singular inconsistency in the answer of the defendant. At the same time that he alleges that the Supreme Court has declared that part of the judgment null and void, he maintains his right to cause it to be enforced against the plaintiff. If his premises were true, that this court had annulled that part of the judgment, his conclusion should have been, that the execution be set aside; and as relates to Cooley, that he should be condemned to refund the money to Madame Mourain, and npt to pay it over to himself. In every view of the case, we are of opinion that the District Court correctly perpetuated the injunction.

Payment made to the attorney on the record is a good payment. The curator ad hoc cannot obtain an ex parte judgment against the person, whose interest in a suit he was appointed to defend, for his fee or compensation.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.