Ramoneda Bros. v. Mikletisch

BEAUREGARD, J. This is an appeal from the Judgment of the Court a qua dissolving a writ of attachment by the plaintiffs who had set up Defendant’s indebtedness to them in the sum of $571.68. Defendant, it was alleged, was a resident of Houston, Texas, and the appointment of a curator ad hoc was prayed for and obtained. Defendant it appears had, by the Morgan, La. & T. R. R. &' Steamship Co., shipped, consigned to himself and to Gragard& Co., Ltd., three car loads of oak staves, these were the subject of the atttachment. The R. R. Co., made Garnishees, answered admitting their receipt of these car loads of staves, but claiming their privileged rights thereon for reimbursement of their freight charges and other incidental expenses. Thereupon an agreement was entered into between all the parties litigant: Plaintiffs, defendant — through his curator ad hoc, the garnishees and the firm of Gragard & Co., Ltd., whereby the prompt sale of these staves was confided to the last named party; the charges to be paid and the net residue to be deposited in the Registry of the Court. Following this agreement, or on the same day it was entered into, Defendant, through his Curator ad hoc, moved to dissolve said attachment, on the ground that ‘ ‘the citation to him for execution and issuance of the writ was illegal and void;” because, as against an absent defendant, the law for issuance and execution of said writ had not been complied with. Títere is of record no evidence except what appears from the face of the prayer of the petition, none on behalf of Defendant in rule; nor is there on behalf of the latter any exception or other proceeding urged to either defeat the motion or require of mover in rule more specific allegations than those therein set forth and referred to above. Defendant in the attachment stands squarely on Article 254 of C. P., and cites a number of authorities which hold that the absor-vance of all of the formalities prescribed by this article are sacramental, whilst their omission is fatal. [298] That from the prayer of Plaintiffs’ petition — on which the rule to dissolve is predicated — it is apparent that the pre-requisites to the attachment proceedings had been omitted, for the postings of the citation and writ of attachment had not been asked for, and that in fact no such posting was done. Plaintiffs urge on the contrary that this was a matter of fact which should have been proven by the plaintiff (Defendant) in rule which was not done. The Court a qua considering doubtless from the returns of the Sheriff, that no such posting had been made dissolved the attach.ment. From the record it does in fdct appear that the citation never was posted, and had been, .however, properly served on the curator ad hoc; but that the writ of attachment and the Sheriff’s return of his seizure thereunder had, not only been posted on the Parish Church (The Cathedral) but also on the door of the Court from which the writ issued. The Court had, therefore, so far as the subject matter in dispute was concerned acquired full jurisdiction. This case presents stronger features than those reviewed by the Supreme Court in 50 A. 170; State ex rel Griffith vs Reid on certi-orari, in which case attachment proceedings had been instituted against an absentee. The question was raised of the constable’s failure to comply with Art. C. P. 1120, substantially the same as Art. C. P. 254, in affixing a copy of the citation and of the attachment to the door of the room in which the suit was pending. These attachment proceedings were, however, followed by a judgment both in the Court of first instance and the appellate (the District) Court in plaintiff’s favor. These decrees were held to be nullities, and the case was remanded; the Supreme Court holding that “the Constable (who had in an affidavit declared the fact of proper service)” will have to make a return showing that service was made by affixing copies of citation on the Court House door xxxxx or, if no service has heretofore been made, he will have to make it and a proper return. Hence it was adjudged that, “the suit, demand and writ of attachment be reinstated on the docket of the Court of first instance and proceeded with according to law.” 1. In the instant case, following the dissolution of the attachment, plaintiffs moved for a new trial, swearing in 'their application that they had, (notwithstanding due diligence on their part), just discovered that the Curator ad hoc, even before the motion to dissolve, had become Defendant’s special Counsel; and in this Court urge substantially that whatever defects existed or could have existed in the service of the citation in the attachment, that its service on this special Counsel had, in fact cured every defect. 2. Further, that the agreement, referred to above, for the sale of the Staves and the deposit of the proceeds in the registry of the Court, there to await its final action, amounted under the following [299] authorities: 41 A. 284, 44 A. 87, to a waiver of all antecedent defective legal proceedings.. June 18th, 1904. And further, that plaintiffs having been mistaken as to the full amount of their claim against the defendant which instead of $521.68 as originally prayed for, amounted to $744 — they had filed and had served a supplemental petition to that effect which had not been entertained by the Court a qua. Under the decision quoted “supra” 50 A. 170, the first' and second grounds urged are of no moment here, for inasmuch as compliance with the views held in that decision will be required, the case will be remanded for a new trial, also, for the filing and consideration of the supplemental petition referred to subject however to whatever objections which in the discretion of the trial Court, it may deem pertinent. The supplemental petition tendered did not change, but simply amplified the issue. C. P. 156. 40 A. 10. It is therefore, ordered and decreed that the judgment appealed from be and the same is avoided and reversed, and it is now ordered and decreed that this cause be remanded to the lower court with instructions to grant a new trial; to also permit the filing and service if this has not already been properly done, of the supplemental and amended petition; and finally that the right be reserved to the Plaintiff to make and cause to be made all further and legal service required by law, and that this cause be then further proceeded with according to law.