Tudor v. John E.

| La. | Jan 15, 1851

The judgment of the court was pronounced by

Slidell, J.

This is an action instituted to obtain the cancellation of a mortgage granted by plaintiff to defendants on lands in New Orleans and recorded here, the surrender of a note made by plaintiff for $15,000 secured by the mortgage, and also to recover $20,000 damages. The parties are all residents of Boston, where the contracts were made. There was no personal citation. A curator ad hoc was appointed to represent the defendants. He filed an answer in which he consents, under instructions received by him from the defendants, that the registry of the mortgage be cancelled ; but alleges that the debt for which the mortgage was given has not been fully paid. He further pleaded, that the existence of the mortgage was the only basis for the jurisdiction of the court; that the defendants had not been cited, and that he had no authority to appear for them except under the appointment .of the court; that, therefore, touching any demands of plaintiff beyond the cancelling of the mortgage, he pleaded to the jurisdiction of the court. -

We think the plea to the jurisdiction should have been sustained, and that the court was without authority to render a judgment pei'sonalJy binding upon the defendants as a settlement of the accounts of the parties, and mulcting them in damages for the alleged injury of the plaintiff’s credit. See Dupuy v. Hunt, 2d Ann. 562. Peterson v. McRea, 101.

It is true, that the defendants in answer to the curator’s letter informing them of his appointment by the court, furnished him a statement of their grounds of defence to the action, which he has embodied in his plea; but we do not undei^ stand them as intending to waive any valid defence which could be made to the proceeding; and the curator has throughout acted in that capacity, and carefully abstained from appealing as an attorney at law or counsel for the defendants.

Whether the curator might not have successfully pleaded unqualifiedly to the jurisdiction of the court, is a question not urged by the appellants, and upon which we need not express an opinion.

It is therefore decreed, that the judgment of the district court be reversed. It is further decreed, that the registration of the mortgage in favor of the defendants in the petition described be cancelled; that the costs of this suit in the court below, incurred down to the 2d May, 1849, be paid by the appellants, and that the residue of costs be paid by the plaintiff,