Hill v. Bowman , 14 La. 445 ( 1840 )

Martin, J.,

delivered the opinion of the court.

The defendant is appellant from a judgment, rejecting his claim to a discharge from imprisonment under a ca. sa., issued in execution of a judgment of the District Court for the first judicial district, affirmed on appeal by a judgment of this court. See 1 Louisiana Reports, 543.

The judgment alone of this court must have effect, and is the law, independently of any expression used ar-guendo. A judgment allowing part of the demand as an ordinary debt is in personam, although the suit •was by attachment for a privileged debt.

His counsel has contended, that the writ of ca. sa. ought to be quashed, because it issued on a judgment which had no other object, and ought not to have any other effect than to settle the relative rank and privileges of the claimants on the steam-boat Oregon, (or its proceeds) of which the appellant was part owner. It is further urged, that the suit on which judgment was given, was instituted by writ of attachment, the appellant and his. co-owners being non-residents; that he did not appear in the suit, and that he was not otherwise represented than by an attorney, appointed by the court, to protect, as he contends, the property attached.

I. The first point is, whether judgment be in personam. To show that it is not, we have been referred to our judgment in confirmation, in which we say, “ the District Court has acted only on the privileges resulting from the nature of the claims.” The district judge, in the judgment now appealed from, has thought otherwise.

The original judgment affirmed by us absolutely, must have its effect, independently of any expression used by this court, arguendo, in affirming it. It contains these words : “ They (plaintiffs) have shown themselves entitled to a privilege for the balance of their account, but it is allowed as an ordinary debt.” The district judge has, therefore, correctly concluded, that this allowance of a part of the plaintiff’s claim, without a privilege, was a judgment therefor against the defendant in personam.

II. The second point is, whether proceedings by attachment are purely in rem, or in personam also. On this part of his defence, the defendant is supported by the authority of Judge Story, who says, that such proceedings are “ to be treated, to all intents and purposes, as if the defendant has never appeared and contested the suit, as a mere proceeding in rem, and not personally binding on the party as a decree or judgment in personam.” Story’s Conflict of Laws, section 549. Judge Kent cites the case of Mayhew vs. Thatcher, 6 Wheaton, 129, in which, he says, the Supreme Court of the United States “seem to imply that a judgment in one state, founded on an attachment in rem, would not be conclusive evidence of the debt in other states, if the defendant had not personal notice of the suit, so as to enable him to defend it.” 1 Kent's Commentaries, 262.

So,tt’nha su|t the judgm^nTís ^«forthe ®°‘" perty attached, °j? ffy issue-

This case, however, must be decided by our own codes. Our legislature has considered all persons, whether they were ever in this state or not, as amenable to our courts. The Louisiana Code, article 57, provides, that if a suit be instituted against an absentee who has no known agent in the state, or for the administration of whose property no curator has been appointed, the judge, before whom the suit is pending, shall appoint a curator, ad hoc, to defend the absentee in the suit.” We have, also, a legislative definition of the word “ absentee.” “ It includes persons who never were in the state, as well as those who, having resided in it, have removed from it.” Louisiana Code, 3522, No. 3.

In the case of George vs. Fitzgerald, 12 Louisiana Reports, 604, we recognized the application of the word “ absentee” to a defendant never having resided in the state. It is, therefore, clear, that our law recognizes the liability of defendants being brought into court without personal citation, or one at domicil by service of a citation, on a person appointed by the court to represent such defendant.

In a suit by attachment, the seizure of the defendant’s property must soon be known to the person who had the care of it, and it is not probable that he will conceal it from the owner. Besides this, the law requires a'citation to be served on the defendant, if possible. If this cannot be done, citations are to be posted up. If the defendant does not appear, the court must appoint an attorney to represent him, and defend the suit, on whom service of the petition is to be made. Code of Practice, article 256, 260. “ Reasonable delay is to be given to such attorney to enable him to communicate with the party he represents.” Idem., 260.

In the case of service of citation on a curator, the proceedings cannot be in rem, and must necessarily be in personam. , In that of attachment, the law has taken much greater care to afford notice of the suit to the defendant, and it cannot be presumed that it intended a less security to the plaintiff.

It is, therefore, ordered, adjudged and decreed, that the judgment óf the District Court be affirmed, with costs.