Seymour v. Cooley

| La. | Jan 15, 1836

Martin, J.,

delivered the opinion of tbe court.

This is an action of nullity, instituted by the plaintiff to annul and set aside a judgment rendered against him, on the alleged ground that he had never been legally cited; and that no appearance or judgment by default, had been previously had or taken in the case. There was a judgment pronounced against him, from which he has appealed to this court.

The suit in which the judgment sought to be annulled was given, was instituted under the 57th article of the Louisiana Code, on the suggestion that the defendant was an absentee, and had no known agent in the state, and that no curator had been appointed to his estate, to represent him as an absent defendant. A curator ad hoc was accordingly appointed by the court in which the suit was pending, contradictorily with whom, the suit was proceeded in until final judgment.

The counsel for the appellant, in this case, has contended in argument, that the judgment ought to have been annulled, because the suggestion on which the court acted, in appointing the curator ad hoc, was not otherwise verified than by the oath of the son of the plaintiff.

2. Because at the time of the appointment of the curator ad hoc, there was no suit pending.

The oath of the son, as the agent of the plaintiff, is sufficient to obtain an order of court appointing a curator ad hoc to the defendant in a case where suit is pending. A curator ad hoc is to be appointed to^ an absentee, in^ a suit which* is instituted and pending. The citation in sucha case, must be served on the curator ad hoc, against whom, contradictorily, the proceedings must be carried on to final judgment. The 57lh ai*ti-cle of the Louisiana Code, expressly requires that a suit be first instituted and pending, before the appointment of a curator ,ad hoc is to be made. 'The agent who represents • ‘his principal in a suit, must have authority to do so, so as to allow all legal proceedings to be carried on contradictorily with him, in order to bind the princi-iml.

3. Because the defendant had a known agent in the state at the time.

4. Because the appointment of curators is exclusively vested, by the Code of Practice, in the Courts of Probate.

I. Suggestions on which precautionary measures are obtained at the inception of a suit, such as the arrest of the debtor, the attachment or sequestration of his property and the like, are verified, ordinarily, by the oath of the plaintiff. Where the oath for the appointment of a curator ad hoc, and such 'like conservatory acts, is made by the son of the plaintiff, it cannot be more objectionable than if made by-him who is directly a party in interest.

II.,The Code directs the appointment of the curator ad hoc, if a suit be instituted against an absentee who has no known agent in the state, to be made by the court before which the suit is pending.

As the curator ad hoc, is the person against whom the proceedings are to be conducted, contradictorily between him and the plaintiff, it follows as a consequence therefrom, that upon him is the citation to be served; and the construction which would require the previous citation of the party, would be the cursed one, which corrodes and destroys the text.

In the case of an attachment in which proceedings commence against the property of the debtor, he not being present, the citation is first served by advertisement affixed on the court house door; and the law provides for an appointment of an attorney to whom the process is also to be delivered.

If there be any ambiguity in the English part of this article of the Louisiana Code, providing for the appointment of a curator ad hoc, the doubts it may create are at once dispelled by a recourse to the French text, which expressly speaks of a suit first instituted and pending,. before the appointment is to be made.

III. The judge presiding at the trial of the cause, expressed his opinion that the 'testimony by which the agency of Vance was attempted to be established, was vague and unsatisfactory. Be that as it may, the nature or character of the agency was not shown to have been such as to authorise him to represent the principal in the suit, and to allow legal proceedings to be carried on under it, contradictorily with him, so as to bind the principal thereby. We agree with the counsel for the appellee, that the agent of which the Louisiana Code speaks, must be an agent of the latter description.

The general provisions in the Code of Practice for the appointment of curators by the Probate Courts, do not repeal the particular one, requiring all courts to protect the interests of absentees in suits pending before them, by the appointment of a curator ad hoc. Defects in judicial proceedings, such as want of appear-' anee, judgment by default, or misconduct and neglect of the curator ad hoc9 &c. can only be remedied by an appeal, and not by action of nullity*

IV. The general provisions of the Code of Practice for the appointment of a curator by the Court of Probates, does not repeal the particular one which requires all courts to protect the interests of absentees, who may be sued before them, by the appointment of a curator ad hoc.

We conclude that the judge who tried the case in the first instance, did .not err in refusing to annul the judgment attacked in the action of nullity, on the ground of the want of legal citation.

If a defect in the proceedings, , occasioned by the want of an appearance or a judgment by default, entitle the appellant to relief at our hands, he should have sought it by an appeal. The district judge could not reverse his own judgment, on such grounds.

So of the misconduct of the curator ad hoc, in his neglect ’ to ask time to consult tb.e appellant whom he wras appointed to represent and defend; this would not entitle the party complaining to a reversal of the judgment, and have the cause remanded. The remedy, in such a case, could only be sought on an appeal.

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