105 So. 90 | La. | 1925
The Court of Appeal propounds the question whether service of citation upon the defendant personally is necessary in a foreclosure proceeding via ordinaria, against a nonresident mortgagor, when the plaintiff, holding a mortgage on the nonresident's land in this state, evidenced by an authentic act importing confession of judgment prays only for a judgment in rem, recognizing the mortgage, and executory only by seizure and sale of the property mortgaged.
The plaintiff had a curator ad hoc appointed to represent the absent defendant, and the citation and copy of the petition were served upon the curator personally. He did not answer the suit, When the delay allowed for answering had expired, the plaintiff's attorney moved for and obtained a judgment by default; and, when the delay allowed for setting aside the default had expired, he undertook to confirm the judgment by default. He produced evidence which the judge deemed sufficient; but the judge refused to give judgment in favor of the plaintiff, believing that it would be null without a previous seizure of the property or service of citation on the defendant personally. The plaintiff appealed to the Court of Appeal, and that court has submitted the question to us.
It is conceded that, if the plaintiff had proceeded via executiva, the proceeding by appointment of a curator ad hoc or attorney for the absentee would have been valid, under article 737 of the Code of Practice, which provides:
"If the debtor who has granted the privilege or mortgage is absent, and not represented in the state, the judge, at the request of the plaintiff, *33 shall appoint him an attorney, to whom notice of the demand shall be given, * * * and contrarily [meaning contradictorily] with whom the seizure and sale shall be prosecuted."
The district judge was of the opinion that, under the doctrine of Pennoyer v. Neff,
The constitutionality of article 737 of the Code of Practice, authorizing foreclosure proceedings against an absent mortgagor by the appointment of an attorney to represent him, was challenged in Richardson v. McDonald,
Article 163 of the Code of Practice is also appropriate to this case, viz:
"In actions of revendication of real property, or when proceedings are instituted in order to obtain the seizure and the sale of real property, in virtue of an act of hypothecation importing confession of judgment, the defendant may be cited, whether in the first instance or in appeal, either within the jurisdiction where the property revendicated or hypothecated is situated, though he has his domicile or residence out of that jurisdiction, or in that where the defendant has his domicile, as the plaintiff chooses."
Article 206 of the Code of Practice declares that citation is essential in ordinary proceedings, but not in executory proceedings or proceedings in rem. A foreclosure of a mortgage via ordinaria is only an action in rem, if the only decree asked for is a recognition of the mortgage and a judgment executory against the property mortgaged and no other property. *35
The ruling in Levy v. Collins,
Robers v. Binyon,
"We are therefore of opinion that to the extent that plaintiff is seeking to enforce his rights against the real property found within the jurisdiction of the district court the suit was properly brought and the judgment properly rendered, but the relief granted must be confined, not only under the law, but, under the contract sued on, to the property."
In Roos v. Rogers,
"The holder of mortgage notes, executed by a nonresident, may sue to foreclose via ordinaria or via executiva, in the district court for the parish in which the mortgaged real estate is situated.
"Where, in such a case, the holder sued via ordinaria, and obtained judgment both in rem and in personam, and caused a writ of fieri facias to issue, under which only the mortgaged property was seized and sold, held, that the *36 writ was properly issued on the judgment for the seizure and sale of the mortgaged premises to pay and satisfy the mortgage debts; and that, as no other property of the defendant was seized under the writ, neither he nor his assigns have any grounds of complaint."
Our answer to the question propounded by the Court of Appeal is that service of citation upon the defendant personally in this case was not necessary. The plaintiff is entitled to have the judgment taken by default confirmed.