Walker v. Waller

CARVER, J. Plaintiffs sue to annul a judicial partition of land in which they had an interest, on the ground that at the time of the partition they were minors without a Tutor and that a Tutor ad hoc appointed to represent them in the partition suit waived service and citation, which he was without authority to do. In the following cases it was held that Tutors ad hoc and Curators ad hoe had no such authority. , > Cornier vs. De Valcourt, 33 La. Ann. 1168. Hill vs. Barlow, 6 Rob. 142. Stockton vs. Haslock, 10 Mar. (O. S.) 472. Jacobs vs. K. C. S. & G. Ry. Co., 134 La. 389, 64 South. 150. But in this case, the record in the partition suit, produced and filed by plaintiffs in response to a prayer for oyer, shows that the Tutor ad hoe did not waive service or citation but instead signed an acknowledgment reading as follows: “I hereby acknowledge service of copy of petition and citation in this case; reserving time and delays. This September 25, 1907.” It was held in Millaudon vs. Beazley, 2 La. Ann. 916; Bartlett vs. Wheeler, 31 La. Ann. 540, and Fly vs. Noble, 37 La. Ann. 671, that such an acknowledgment was not [782] a waiver but, on the contrary, was an admission that service and citation had been properly made and therefore the case did not fall under the principle announced in the cases first above cited. Those secondly cited seem controlling in this case, so, in our opinion, the judgment of the lower court dismissing the suit on an exception of no cause of action was correct and it is affirmed. Reynolds, Judge, being recused, took no part in the decision. ON APPLICATION FOR REHEARING. In our opinion in this case we said: “But in this case the record in the partition suit produced and filed by the plaintiff in response to the prayer for oyer, shows that the Tutor ad hoe did not waive service of citation but instead signed an acknowledgment reading as follows: T hereby acknowledge service of a copy of petition and citation in this case, reserving time and delays’.” The plaintiff brought this suit to annul the partition on the ground, as we understood it, that the Tutor ad hoc waived citation. In their petition reference is made to the waiver of citation by the Tutor ad hoc. On looking over the record we saw that the Tutor ad hoc had accepted service of citation and petition. The wording of the acceptance implies that a citation had in fact issued and that it with petition was actually served on him. Plaintiffs, in application for rehearing, set up that, as a matter of fact, no citation ever issued and that, therefore, the acknowledgment of the Tutor ad hoc that it was served on him is false. This point was not raised or presented to us originally. Rehearing granted.