24 La. Ann. 251 | La. | 1872
Lead Opinion
William Wren, a tenant of John P. Walw.orth, having caused certain improvements to be made on the premises for his own account, by John Page, gave said Page his note for the balance due by him, $418 65,
On the eleventh of December, 1862, Page proceeded against Wren and Walworth, by attachment, and caused the property of Walworth which had been leased to Wren to be seized under the writ of attachment. Oil the eleventh of February, 1863, judgment was rendered against both defendants, in solido, with, privilege upon the property attached. In execution of this judgment the sheriff sold the property to one George Hawes, who sold it to Wilson, he sold it to Seiler, and Seiler sold it to the defendant.
On the fourteenth of April, 1866, Walworth and Wren instituted suit against John Page to have the judgment rendered against them in 1863, and by virtue whereof the property in question had been sold by the sheriff, declared a nullity, on the ground that they had not been cited.
A decree was rendered in that case, declaring the judgment in the case of John Page v. John P. Walworth et al. null and void, for want of citation.
It is not necessary to decide what is the effect of the decree in the suit by Walworth and Wren against Page, declaring the nullity of the judgment in the case of John Page v. John P. Walworth ct al., as to persons not parties to that suit, for the pleadings and the evidence in this suit will enable us to examine the validity of that judgment.
The proceeding was by attachment against John P. Walworth and William Wren, both absent from the State, and they do not appear to have been cited. Citations addressed to Mrs. John P. Walworth et al., were posted at the doors of the court house and the church, and one was served upon a curator acl hoc, but no citation was addressed to John P. Walworth or William Wren.
The district judge who had the original citations before him says: “ It appears that the judgment under which the above fieri facias was issued was a radical nullity; no citation such as the law requires having been served upon the defendant,' and it is conceded that the proceedings which resulted in the judgment against John P. Walworth and Wren, in No. 19,232, are absolutely null and void, as there is no legal, citation in the case.” The same fact was found by the judge who tried the suit of Walworth and Wren v. Page, for the nullity of the judgment against them.
Articles 179 and 254 of the Code of Practico proscribe how the defendants in tlio attachment suit should have been cited. It is well settled that the forms of law required in cases of attachment against absentees or non residents, are to be strictly pursued; and that when the law designates, in lieu of personal citation,, certain notices or publications in derogation of the common right to be heard before condemnation, courts of justice will require a strict compliance with 'the peculiar forms indicated by the law maker. 1 N. S. 9; 8 N. S. 145; G La. 577; 13 An. 150; 2 An. 403.
The defendant contends that purchasers at sheriff’s sales can not be required to go behind a judgment; and that if a judgment and a writ of fieri facias be shown, and the proceedings under the writ be regular, the purchaser will be protected.
The error he commits is in supposing there can be a judgment when the defendant has neither been cited nor appeared to defend the suit.
In Bernard v. Vignaud, Judge Porter said: “ In every judgment the agency and presence of these parties are required; judex, actor et reus.
Tile broad aud well recognized distinction, that judgments absolutely null have no existence in law, while those only relatively null have an existence until they are set aside, seems to have been ignored by the learned judge a quo. C. C. art. 12; 1 N. S. 1; 6 La. 377; 11 R. 321; Baldwin v. Carlton, 6 An. 265 ; Uzee v. Biron, 2 An. 492 ; Galbraith v. Snyder, et al.
The defendant’s title is without foundation, as it rests upon a judgment which has no legal existence, and which, therefore, can not be the source of any legal right or obligation. 6 R. 205; Lowery, curator v. Erwin, 2 An. 569 ; Branghton v. King, 2 An. 503 ; Gibson v. Foster, 5 An. 633 ; Adel v. Auty, 13 An. 431.
Not being a possessor in good faith, the defendants owe rents. 6 R. Lowery v. Erwin, 192 ; Bry v. Fouché, 11 An. 665.
The evidence shows that the use of the property from the twenty-eighth of November, 1864, to the eleventh of February, 1869, was worth at least fifty dollars per month, for which there should be judgment in favor of the plaintiff C. C. 2427. It is also proved that the defendant has paid fourteen hundred and forty-two dollars for work and repairs necessary for the preservation of the property, and for taxes. This ho is entitled to be reimbursed by the plaintiff. It is further proved that he paid to William W. Wilson and John Seiler 84000 for the property, and S40 broker’s bill, and $16 50 notary’s bill, expenses of the sale, and that he has incurred a liability of five hun.dred dollars for attorney’s fee for defending this suit. -These sums the defendant is entitled to recover from Ms vendors and warrantors. C. C. 2482, 1960. William W. Wilson and John Seiler called their vendor in warranty, but there was no issue joined between them.
It is therefore ordered and adjudged that the judgment of the lower court bo annulled, and that there be judgment in favor of plaintiff against the defendant, recognizing the plaintiff as the owner of the 'property described in the petition, and ordering that the defendant be put in possession thereof. It is further ordered that the plaintiff have aud recover judgment against the defendant for twenty-five hundred and twenty-one dollars and fifty-eight cents, as rents, with five per centum per annum interest thereon from this date, and costs of suit; subject to a credit of fourteen hundred and forty-two dollars and fifteen cents.
It is further ordered and adjudged that the rights of William W Wilson and John Seiler against their vendor and warrantor be reserved to them.
Rehearing refused.
Dissenting Opinion
dissenting. In my opinion the citation, brought in
question in this controversy, is in legal form as to the plaintiff. It X>ossesses all the requirements of the law, and I do not think the action of the clerk in prefixing the letters or characters “ Mrs.” can render that citation void. These characters at most are conventional, and can not properly be considered as controlling the names of parties. A citation good in form in an ordinary action is good in an attachment suit.
The purchaser is reqhirod to look only to the existence of a judgment by a competent court, the writ of execution and the sale.
I therefore think the sale should not be set aside.