George v. Le Grand

The judgment of the court was pronounced by Slideee, J. Angus McNeill was the curator of a succession, .and gave a mortgage on .certain property i.n the parish .of C.addo to secure his faithful administration. In the spring of 1840, McNeill left the State of Louisiana permanently, and has lived in Texas ever since. Subsequently, George, who succeeded him in the curatorship, instituted an action .against McNeill. In the petition he alleges that McNeill was a defaulter to the succession, and had left the State. He prayep! that a curator ad hoc might be appointed to represent McNeill, that he might have judgment against McNeill .for the amount of the official bond, and that the mortgaged property should be sold for the payment of the idebtedness. Messrs. Frost, Gilbert Briggs, were appointed to represent the absent defendant, and were cited ip that capacity. An exception was pleaded by Frost ¿y Briggs, which is signed by Frost as curator, and by Briggs without mention of his capacity of curator. An answer in the case was signed, “Briggs S?Frost, Attorneys for defendant.” The judgment which was .rendered in 1841, decrees .that George recover of McNeill $14,622 93and| interest; that the mortgage be recognized and made executory; and that an allowance be taxed in the costs in favor .of Frost 8f Briggs, curators ad hac.l The proceedings upon .the seizure and sale under a fieri facias of the fnorjH [653] gaged property,- as exhibited in the sheriff’s return, show that the sheriff treated Gilbert as curator, and served notice on him in that capacity. The question presented for our consideration is, whether the judgment has the force of a personal judgment against McNeill, and, being recorded, operates as a judicial mortgage upon property íd the hands .of the defendant, hold under mesne conveyances from McNeill, by deed anterior to the judgment; or whether the effect of the judgment must be restrained' to the property, covered by the mortgagej rendered executory in that suit., We consider-1 the judgment as not having the force of a personal judgment rendered upon citation. McNeill was not cited, and was represented by a curator ad hoc, whose appointment was valid for the purpose of enforcing the mortgage upon the mortgaged property situated within the jurisdiction of the court. Millaudon v. Beazley, 2 An. 916. To this extent its .operation must be restrained, unless McNeill can be considered as having appeared by counsel, or otherwise become, in legal contemplation, a party to the cause. The sole facts upon which the plaintiff relies in argument are, that Frost was, as proved by a witness, McNeill’s general counsel up to the time of his leaving tho State in 1840, and that the answer is signed by Briggs Sf Frost as “attorneys for defendant.” We cannot presume that the relation of counsel and client continued between Frost and McNeill after his departure from the State; and looking to the record as a whole, we consider the mode in which they signed the answer as informal merely, and that in legal effect, it was an appearance in their capacity as curators ad hoc, under the appointment of the court. Tho decree proves that the court viewed them in that light, and their receiving the allowance taxed in their favor shows that they, so considered themselves. Upon the authority of Dupuy v. Hunt, 2 An. 562, and Broughton v. King, 2 An. 571, the peremptory exception pleaded by the defendant was properly sustained. Bídgment affirmed.