Roubieu v. Champlin

Wyby, J. On ilio eleventh June, 1860, the defendant made his three promissory notes, maturing one, two and three years after date, in favor of plaintiff, for $2000 each, bearing eight per cent, per annum iul crest from date. In order to secure the payment of the same ho also executed a mortgage on his plantation in the parish of Natchitoches. In 1865 the plaintiff, alleging that the defendant was an absentee, caused a.curator acl hoe to be appointed, contradictorily with whom she closed the mortgage and caused the property to be sold. The proceeds of said sale, to wit: the sum of $6000, were accordingly credited on said demand by the sheriff on tlie sixth April, 1867. Plaintiff then instituted an attachment suit against the defendant, In the parish of Rapides, making certain creditors of the defendant parties garnishees, and also causing the citation and attachment for the defendant to be posted at the courthouse door and notice thereof given to the curator ad hoc appointed by the court. [215] The curator ad hoc pleaded, in his answer, the general issue and the following exceptions, viz: First — That the suit can not he maintained, because it is based on a claim for interest alone, which is alleged to be due on three certain promissory notes held and owned by the plaintiff, when she judicially admits that she obtained a judgment on them on the twenty-first December; 1866, in the parish of Natchitoches. Second — He pleads the prescription of five years. The court rendered judgment in favor of plaintiff and the defend•ant appealed. We will first consider the question of prescription. The plaintiff contends that the proceeding to foreclose the mortgage in 1866 and 1867 interrupted prescription, and that this suit was instituted within five years thereafter. The defendant was not cited Jn that proceeding, being an absentee; the judgment rendered contradictorily with a curator ad hoc was not a personal judgment, but a proceeding in rem. It did not interrupt prescription because there was neither citation nor notice of the order served on the defendant. ■C. C. 3482, 3484, 3516, 3517 ; 2 An. 927; 6 R. 142. A citation for the defendant in this suit was posted at the court•house door on the first August, 1868, and on the same day a notice of ■his appointment was served on the curator ad hoc. There was no suit as to the defendant till the sheriff affixed to the door of the courthouse the attachment and citation. C. P. 254. The last of the three notes upon which this demand is based matured •on the eleventh June, 1863. All the notes were more than five years past due when the citation was served and the prescription of five .years had accrued. • C. C. 3505. Entertaining these views it becomes unnecessary to consider the •other ground of defense. It is therefore ordered that the judgment of the court a qua be annulled and avoided, and it is ordered that there be judgment for the .defendant, with costs in both courts.