Dickson v. Morgan

6 La. Ann. 562

• Court: Supreme Court of Louisiana
• Decided: June 15, 1851
• Status: Published

Opinion

The judgment of the court was pronounced by

Preston, J.

The plaintiffs commenced suit, and obtained judgment, against William, S. Morgan. In commencing their suit, they prayed that David, Melleville, by his agent and attorney in fact, W. E. Camp, might be made garnishee, and cited to appear and answer interrogatories. The sheriff returned, that, the citation was served on David.Melleville, garnishee, through William E. Camp, his agent, in person; said Melleville being absent from the parish. Interrogatories were served upon Camp, as agent of Melleville, and the sheriff seized in his hands the effects of the defendant. He answered the interrogatories, as agent of Melleville, showing assets of the defendant in his hands, and afterwards attempted to file a supplemental answer, showing a greater indebtedness from the defendant to Melleville; but which application was dismissed.

A rule was then taken upon Melleville, having for its object, to render him liable, on the answers of Camp, to the amount of the judgment. It was dismissed by the court, on the ground that the plaintiffs had not shown that Camp had power to appear in court for Melleville, so ns to render his answers binding upon the latter; and the plaintiff's have appealed.

The proceedings against Melleville are based upon the ground, that Camp's answers amount to a confession, that Melleville owed the defendant the amount claimed from him. Our code provides, that the power to acknowledge a debt must be express and special. No such power from Melleville to Camp is shown. No administration, as agent of a garnishee, can lead to a result indirectly, which could not be obtained from the agent directly. Judgment against the garnishee was properly refused, so far as it was claimed by virtue of the answers of his agent.

It is next urged, that the petition, citation, and interrogatories to Melleville, as garnishee, were duly served upon him; and that, having failed to answer the interrogatories, are Io be taken as confessed against him. The Code of Practice requires the service of citation personally, which did not take place in this case, or at the domicil of the person to be charged. The garnishee had no domicil in the State. It was held, in the late case of Fusillier, Administrator, v. Robin, that the power of administration given to an agent, does not authorize him to defend suits which may result in the alienation of the principal's property.

It is said, the affidavit of Camp, the agent of the garnishee, shows that he had property in his hands, subject to the plaintiff’s attachment. It was an ex parte affidavit; perhaps, by cross-examination, the garnishee might elicit that the property was not subject to the attachment. And if it was liable, that investigation can still be had, as the sheriff attached all effects of the defendant in the hands of Camp, agent of Melleville.

The judgment of the district court is affirmed, with costs.