Millaudon v. Beazley

The judgment.of .the court was pronounced by King, J. The plaintiff has instituted this .action against the defendant Beazley, upon two joint and several promissory notes, payable to order, made by Beazley 8f Day, and secured by a special mortgage. He prays for a judgment .for the amount remaining due, and for a sale of the undivided half of the hypothecated property owned by the defendant.to satisfy the debt. The defendant beingan absentee, a curator, ad hoc was appointed by the judge belo.w.to represent him in the defence of the suit. On .the 23d of December, 184,4, the curator acknowledged service of the petition and citation. At the next ensuing term of the court he filed an exception, praying for the dismissal of the cause,on the ground that the appointment of acurator to represent the'absentee was unauthorised by law, and pleaded further the want of amicable demand. The exception was overruled, and the cause continued until the next term of the court, for the purpose of enabling the curator to correspond with the absentee.. After the expiration of this delay a plea to the merits was filed, and subsequently, in an amended answer, the prescriptions of one, three, and five years were specially pleaded. The defendant’s plea of prescription was overruled, and the plaintiff having proved the execution of the notes, and exhibited in proof tire mortgage on which the action is founded, a judgment was rendered in his favor for the amount,of his demand, from which the defendant, by his curator, has appealed. The objection made that the defendant could not be brought into court by a curator ad hoc, was properly overruled. The defendant owned property in the State,.which .was specially mortgaged tp secure the plaintiff’s claim, and in such cases our laws expressly permit absentees .to be proceeded against judicially., upon being.represented by a curator ad hoc. C. C. 57. C. P. 116. The plea of want of amicable, demand was also correctly overruled. The defendant -being an absentee such a demand was impracticable. In addiüou to the defences specially setup in the pleadings, the curator ad. hoc contends, in this court, that, as the representative of the absentee, he was without authority to waive a service of citation and of a copy of the petition; that there has been no service on him by which the defendant has been brought into court, or the prescription interrupted; and he relies upon the cases of Hill v. Barlow, 6 Rob. 142; Carpenter v. Beatty, 12 Rob, 540; and Hyde v. Crad [917] dick, 10 Rob. 387. With regard to tho questions touching tho authority of curators ad hoc determined in those cases, we express no opinion. None of the cases cited decide the point presented in this suit. Tho curator in the present instance, as far as appears from tho record, waived none of the rights of the party whom ho was appointed to represent. There was no waiver of citation nor of service of the petition, but tho -written acknowledgment of the curator is that both wore served upon him. The service thus acknowledged was made on tho 23d of December, 1S44, and at that date brought .the defendant into court, and operated an interruption of tho prescription. The first of the -notes upon-which this action is based, matured on the 1st of January, 1839, and the second on tho 1st of January, 1840. The service of citation we have said was made on the 23d of December, 1844, moro than five years after tho maturity of the first note. Consequently prescription had accrued, as regards that note, prior to tho inception- of this suit, unless an interruption within that time be shown. To establish such interruption the plaintiff l-eiios on the acknowledgment made by the curator of the .vacant estate oí Day,ono of the joint and several co-obligors, on the -13th .of Juno, 1839, and -on a suit also instituted against that curator on-the 2d of October, 3838, for a-salo of the mortgaged property, which resulted in a judgment on the -13th of the same month. If it be conceded, as contended for, that tho acknowledgment in tho one case, and the citation in tho other, interrupted tho prescription, it commenced again immediately to run as to this defendant, and was completed before the commencement of tho present action. The court bolow erred in overruling the plea of prescription, as rogards the note which first matured- In relation to the seeoud it was .correctly disregarded. Tho judgment of the District Court is therefore reversed. It is further decreed that the plaintiff recover of tho defendant the sum of $3,333 33J, with ten per cent interest from tho 1st of January, 1840, until paid. It is further-ordered that the plaintiff’s mortgage bo recognised and enforced on a tract of land situated in the town of Monroe, bounded by Grand street in front, and below by Grammont street, back by the Ouachita river, and above by a line about ten feet from the line dividing said premises from a lot of John J. Ca’oecns, and including the building known as tire Monroe hotel, together with the other build.ings and .appurtenances, with the exception of a Jot sold by Henry O. McEnery to Samuel Kirby, as described in the act of mortgage ; and that the undivided interest of one half, owned by said Beazley in said property, be seized and sold to satisfy said debt. It is further ordered that the defendant pay the costs of tho .court below, and the plaintiff tho costs of this appeal.