4 La. 154 | La. | 1832
delivered the opinion of the court.
The defendant in this case was arrested by order of the judge, and directed to he held in custody until he gave bail. Whether he did give bail or not the record does not inform us. At the time of the arrest a citation to appear and answer the annexed petition was served on him, but it appears the petition was not served. He filed the following exceptions:
1. Want of regular service of the petition and citation.
2. A denial of right in the plaintiff, who styled himself surviving partner of a commercial firm, to maintain an action against him for a debt due to the firm.
Before these exceptions were acted on by the court, the plaintiff, on allegation of the defendant having left the state, obtained an order from the judge that a curator should be appointed to defend him.
Immediately after this order was obtained, the record does not say when, the representative of the deceased partner’s heirs prayed leave to intervene in the cause, and had leave granted to him. In the petition of intervention he states that the heirs are interested in the suit, and join with the plaintiff in the claim against the defendant.
To Ijiese proceedings, the attorneys for the defendant also excepted, on two grounds:
1. That this case was not one in which a curator ad hoc could be appointed.
2. That the petition in intervention was offered too late, and should have been served upon the defendant and not upon his curator.
The court took up all these exceptions at once, and acted on them. The judge was of opinion, that as the surviving partner could not maintain an action in his own name; the arrest was illegal, and the subsequent intervention of the curator of the heirs could not make that good which was in itself a nullity. He therefore sustained the exception.
This court is of opinion that service of both citation and petition is necessary to bring a defendant into court to answer; and that the act of 1828, in relation to arrest, has not repealed the provisions of the Code of Practice on this subject. C.P. nos. 178-9. Acts of Legislature, 1828, p. 150, §4.
But being an absentee (for both the petition and the exceptions state him to be a resident of Tampico) we think a curator might be appointed to him. The 195th article of the Code of Practice contemplates such a course of proceeding after the action is instituted. The attempt to bring the defendant into court during his transient stay here does not at all weaken the right to proceed against the representative,
And we think that on a plea which objects to the legality of the action because all persons having an interest are . ^ . parties, the court may permit an amendment which will bring all the parties before it.
But whether the arrest was legal, and the surety on the ° a bond is bound to respond to a judgement rendered on the pleadings so amended, is quite another question. It was not made by the exceptions filed below. It is not before us, and we express no opinion on it.
As the judge, however, sustained the exception which prayed for the dismissal of the petition, it is immaterial on • i i . , . what reasoning he came to that conclusion if the conclusion be erroneous. Considering it to be so,
. It is, ordered, adjudged, and decreed, that the judgement of the District Court be annulled, avoided, and reversed; and it is further ordered, adjudged, and decreed, that this cause J ° be remanded to be proceeded in according to law; the appellee paying costs of this appeal.
