Thayer v. Tudor

2 La. Ann. 1010 | La. | 1847

The judgment of the court was pronounced by

Kiire, J.

The plaintiff instituted this action to recover the amount of two promissory notes executed by the defendant, and secured by a mortgage passed in Boston, bearing upon property of the defendant in this city. Both the plaintiffs and the defendant are residents of Massachusetts. The plaintiffs in their original petition alleged, that Bosworth was the agent of the defendant in this State, and prayed that the defendant be cited by service on his agent. Bosworth declared under oath that he was not the agent of the defendant for bringing or defending suits, and was unauthorised to defend this action. The plaintiffs then presented a supplemental- petition, alleging that Charles R. Green was the agent of the defendant, and praying that Green be appointed curator ad hoc to represent the absent defendant, and that he be cited both as agent and curator. Green was subsequently shown not to be the agent of the defendant; he was, however, appointed curator ad hoc in conformity to the plaintiffs’ prayer, accepted the appointment, and thirty days were allowed him to correspond with the defendant. At the expiration of that delay he tendered his resignation of the trust, stating that he had advised the defendant, by letter, of the institution of this suit, and of his appointment, and requested to be informed of the defences to be,made to the action, but that he had received no answer. He further stated that he was not an attorney; that the suit was an important one, and that he was unwilling to assume either the responsibility or expense of defending it, without express authority to that effect. This resignation was not accepted by tbe judge. A default was entered, and, after the legal delays and due proof made of the demand, a final judgment was rendered in favor of the plaintiffs, from which the defendant has appealed.

The only question presented is, whether the defendant was properly cited and represented in the cause. It is assigned as error that a curator ad hoc to represent the defendant was illegal, as no writ of attachment had issued against the property of the defendant, in the absence of which no proceedings binding upon him could be had contradictorily with a curator ad hoc. It is further objected that, no oath was administered to Oreen as curator, and that he had tendered the resignation of his trust and ceased to be curator., before either the rendition of the final judgment, or the entry of the default.

The facts of this case, in our opinion, clearly authorised the appointment of a curator ad hoc to represent the defendant. The defendant owned property in this State, which gave jurisdiction to the court; that property was specially mortgaged to secure the payment of the notes on which the action was founded, and the defendant was unrepresented by an agent authorised to defend suits instituted against him. He belonged strictly to the class of absentees, who may be brought before our courts through curators; and for the purpose of subjecting the mortgaged property to the payment of the debt, a jugdment rendered contradictorily with such curator is valid and binding'upon the absentee, as far as it can be executed upon the property thus specially affected in favor of the creditor. In the case of Millaudon v. Beazley, lately decided (ante p. 916), substantially the same question arose which is now presented. We then held that, a creditor could proceed to enforce his mortgage upon the property subject to it, by causing the mortgagor, who was an absentee, to be represented by a curator ad hoc. A judgment, however, rendered in such a proceeding must be restricted in its operation exclusively to the property mortgaged, beyond which it can have no effect, and can possess none of the attributes of a judgment in personam. Dupuy v. Hunt et al., ante p. 562.

The position assumed that the curator should have been sworn, is untenable. Neither the provisions of the Civil Code nor the Code of Practice contemplate, that the curator appointed to represent an absent defendant in a pending litigation is to take an oath for the faithful discharge of his duties. The 52d article of the Civil Code, which it is contended requires such an oath, refers to the curators spoken of in the two preceding articles, who are appointed to administer the property of absentees. These are expressly required to be sworn. The 57th article provides for the further contingency of judicial proceedings being instituted against the unrepresented absentee, and directs that in such cases the court shall appoint a curator ad hoc, whose duties are limited to the defence of the suit for which he is specially appointed ; but neither that article, nor the corresponding articles of the Code of Practice, require that he be sworn. C. P. 116, 964. The curator, having accepted the appointment and acted under it, was not at liberty to resign his trust so as to defeat the action of the plaintiff. The judge, in the exercise of a sound discretion, could have discharged him upon sufficient cause shown,' but until thus relieved he was bound to defend the suit. The plaintiffs had the legal right to provoke the appointment of a curator, whose intervention in the suit was indispensable in obtainining a judgment, and to insist upon his continuing to act until the ends of his appointment were accomplished. If a curator could, at will, withdraw from a cause, then it would, at all times, be in his power to defeat the plaintiff’s action, by depriving him of the means expressly granted to him by law, for bringing his debtor into court, and proceeding to judgment against him. We cannot recognise the right of the curator, who has accepted the appointment, thus to withdraw and defeat the purpose of the law and the rights of the creditor. The resignation tendered was not accepted by the judge, and the defendant was properly represented in the canse when the judgment was rendered against him, , Judgment affirmed.