Story v. Jones

14 La. Ann. 73

Opinions

Spofford, J.

Footnotes

•

*

The object of this suit is to annul a judgment rendered in the attachment case of Jones v. Story, in the District Court of Madison, and thus to set aside a Sheriff’s sale of the property attached.

The judgment sought to be overruled was rendered on the 1st of May, 1852, for the sum demanded, to wit, $168, with five per cent, interest from the 9th of May, 1851, and costs.

No appeal could lie from it, because the sum, if disputed, was so small.

It might be questioned whether this court has jurisdiction of a suit to annul a judgment from which no appeal could lie.

But if the original judgment can be examined by us as being the basis of the Sheriff’s sale, which also is sought to be annulled, then we think it clear that there was no absolute nullity in the proceedings which resulted in the judgment.

The defendant was an absentee; he had land in the parish of Madison; he was brought into court by an attachment of the land, which was put under the control of a keeper, and also by a constructive citation, that is, by affixing copies of the citation and writs of attachment to the court-house door, and by the appointment of' an attorney of the court as curator ad' hoc, who accepted the appointment and acted under it, as appears of record. A valid judgment, binding at least in rem, that is upon the property attached, was the result of these proceedings.

In this suit, the defendant in the attachment case seeks to set aside the judgment therein rendered, upon two allegations which were passed upon when raised by exceptions filed by the curator ad hoc; these exceptions, even if true, having been overruled, are now insufficient to strike the whole proceedings with nullity, i. e., that the person who made the affidavit as agent was really not the agent, and that the plaintiff was not absent at the time his pretended agent acted for him.

The only other objections urged against the former judgment are that the curator ad hoc did not correspond with the absent party, and that there was no answer filed.

Upon the subject of a correspondence between the curator and the absentee, there is no evidence ; it is presumed that the curator did his duty in this respect, if he was able to ascertain the post-office of the party whom be was appointed to represent. Tbe case was delayed sufficiently long for that purpose; besides» the plaintiff does not suggest that be lost any means of defence, or that be bad any to communicate to tbe attorney ad hoc.

Tbe fact that tbe curator ad hoc, after bis exceptions were overruled, filedjbo answer, does not vitiate the proceeding's ; ■ he probably thought it wise to file none, as tbe suit was upon a promissory note, and no defence is even now suggested by tbe maker as possible to have been pleaded against it. If the curator did not wish to admit tbe signature, be was not bound to invent a fictitious de-fence.

Tbe Code of Practice required him not to “ file an answer,” but to “ defend tbe suita suit may sometimes be better defended by not filing an answer than by making a false one.

Tbe absentee, if be was aggrieved by the judgment, bad a remedy which is now barred by lapse of time; and the judgment complained of cannot be opened or annulled on any such grounds as were set up in this petition filed more than two years after its rendition.

“ Tbe absent debtor, against whom judgment has been so rendered, (i. e. “ where attachment is demanded after answer filed, or if the defendant has failed to answer,’’ C. P. 265,) “ may, within two years after such judgment, obtain tbe reversal of tbe same, if be prove that tbe distance at which he lived from tbe place where tbe attachment was obtained, has prevented bis being apprised of the proceedings bad against him, and that tbe plaintiff has availed himself of his absence to obtain payment of a debt, either already paid in totality, or partly discharged, or which did not exist.” C. P. 267.

Under tbe bead of “ rescission of judgments,” tbe Code of Practice also provides, that “ a judgment may be reversed, if it has been rendered on an attachment obtained against a person absent, and who bad no knowledge of the action having been brought against him; if such person show that be was not indebted either for tbe whole, or for part of tbe same, for which tbe judgment was obtained and bis property sold. But this action shall be prescribed after two years have elapsed from tbe date of tbe judgment.” O. P. 614.

No radical nullity in tbe Sheriff’s sale which followed tbe judgment has been alleged or proved.

Judgment affirmed.

This decision was pronounced by Judge Spofibrd while oil tlie bench, ancl was suspended on application for re-hearing.