Elder v. Ludeling

The opinion of the court was delivered by Watkins, J. This suit is brought upon a stated account for five thousand six hundred and ten dollars and thirty cents, coupled with an attachment and sequestration, and from a judgment in favor of the plaintiffs for the amount of this claim, and sustaining both of said writs, the defendant' has appealed. The averment on which the plaintiffs demanded an attachment is that the defendant was “ a non-resident of the State,” residing “in the city of Bridgeport, State of Connecticut.” Upon this allegation, duly sworn to by the plaintiffs, the court appointed a curator ad hoc to represent the absent defendant, and caused writs of attachment to issue to the sheriffs of the parish of Ouachita and the parish of Morehouse, in each of which the defendant owned a plantation and other property. The allegation upon which the plaintiffs demanded a sequestration were that they had a lien and privilege as the furnishers of necessary plantation supplies on the crops of the defendant, “and that she has removed from said plantation and shipped to a cotton factor in-the city of New Orleans all the crops raised on said plantations during the year 1895, and petitioners fear and believe and have good grounds to fear and believe that the defendant will conceal, part with, or dispose of same during the pendency of the suit.” In limine the defendant appeared by counsel for the sole purpose of excepting to the suit and the writs of sequestration and attachment on the ground that same were illegal, null and void for the reason that neither the citation, the writ of attachment, nor the writ [1079] •of sequestration were legally served, copies of same having never 'been posted on the door of the room where the Court in which the suit is pending is held, as the law requires. That, in the alternative, she avers that she is and has been a resident of the parish of Ouachita, and verily believes that her said residence was well known to the plaintiffs when this suit was filed; and that she can not be legally brought into Court by means of a curator ad hoc. That the plaintiffs’ averments on which they obtained said writs ■are false aud untrue. That she was not making nor attempting to make any disposition .of the crops or other property on which the plaintiffs had a lien and privilege, other than that agreed on between her authorized agent ■and attorney in fact and the plaintiffs, and that the plaintiffs well knew that she was giving to no other creditor more than themselves, .a preference on the proceeds of the sales thereof. On the same date, the curator ad hoc moved to dissolve the writs .and dismiss the suit on the ground that the defendant was a resident of the parish of Ouachita, and not a non-resident of the State •of Louisiana. It is obvious that the sole ground of plaintiff’s attachment proceedings is the alleged non-residence of the defendant. She is sought to be brought into court, and subjected to a large judgment, through the interposition of a curator ad hoc only. It is not pretended that she was personally cited and served, or that a domiciliary service was made upon her. It is not claimed that citation was issued to and served upon her attorney in fact in the pariah of Ouachita, to whom she had given a power of attorney and authority, to receive service of citation. Conceding, then, for the purpose of defendant’s first exception, that the defendant is a non-resident as she is alleged to be, the jurisdiction of the court depends upon the legality and regularity of the service of the citation and writs of attachment and sequestration. • It appears from the record that the two motions to dissolve the writs and dismiss the suit were filed on the 28th of January, 1896. The record discloses no citation directed to the defendant, and the only process by which the plaintiff sought to obtain a judgment against the defendant was through a curator ad hoc. It shows.further, that the writ of attachment issued to the sheriff [1080] of the parish of Ouachita was served by “ handing a copy to E. T. Lampkin, curator ad hoc.” That the writ of sequestration directed to said sheriff was served by “ handing a copy to E. T. Lampkin, curator ad hoc.” That the writs of attachment and sequestration which were issued to the sheriff of the parish of Morehouse were not served at all, or upon any one, or in any place. Notwithstanding the issue was directly made by the defendant’s exception, that neither the citation nor the writs of attachment and sequestration had been legally served, by affixing certified copies thereof to the door of the room where the court in which the suit is pending is held, the record is barren of testimony on the subject; and the returns of the two sheriffs show an exactly contrary state of facts. The Code of Practice provides that if the defendant “ be absent or reside out of the State, in such case the sheriff shall serve the attachment and citation by affixing copies of the same on the door of the room where the court in which the suit is pending is held.” Article 254. It further provides that the sheriff shall serve the writ of sequestration by “ serving the petition and the copy of the order of sequestration upon the defendant.” It has been repeatedly held that the formalities prescribed-in these articles of the Code of Practice stand in lieu of citation in the ordinary form, and must be strictly complied with upon pain of nullity; and the court has invariably dissolved the writs on account of the failure of compliance therewith. And amongst other cases the following may be cited, viz.: Putuam vs. The Grand Gulf Railroad and Banking Company, 3 Rob. 232; Kraeutler vs. Bank, 12 R. 461; Mithoff vs. Dewees, 9 An. 550; Cox vs. Bradley, 15 An. 529; Woolridge vs. Hedrick, 27 An. 79; Connell vs. Medlock, 24 An. 512; Connell vs. Medlock, 25 An. 590; Irving vs. Edrington, 41 An. 671. Plain as the terms of the Code of Practice are, and as unmistakable as the decisions of this court appear to be, the District Judge tried and overruled the defendant’s motions on Wednesday, the 16th of December, 1896. ■ Something was said in oral argument to the effect that the defendant had waived the benefit of her motion and exception; but such waiver is not discoverable in the record. On the contrary, it appears [1081] from the record that the defendant did not file her answer to the • suit until the 28d of December, 1896 — one week subsequent to the ■ motion to dissolve being overruled — and same is prefaced by the • statement that she reserved “ all her rights under her exception and. motion to dissolve the writs of attachment and sequestration.” In addition to the foregoing, there is no mention made in the brief.' of plaintiffs’ counsel in reference to any such waiver. In our opinion, it is clear that there was neither legal service of citation or writs of attachment and sequestratiou, and that the coprt below erred in failing to so decide. Finding the service wanting in the foregoing essential requirements, the jurisdiction of the court did not attach. It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the suit of plaintiffs’ be dismissed, and the writs of attachment and sequestration be dissolved, and that all costs be taxed against the plaintiffs and appellees.