Galoche v. Grivot ( 1866 )

Hyman, C. J.

Erancoise Galoche sued defendants to have a donation, made by him to them, on the 29th of January, 1851, of a certain lot in the city of New Orleans, revoked.

In her petition she alleged that defendants were absentees, and, at her instance, Joseph P. Horner was appointed by the Court curator ad hoc, to represent them in the suit.

Thereafter, Erancoise Galoche, deceased, and Theodule Perin, alleging himself to be the executor of her succession, and Margaret Bonnaud, averring that she was the universal legatee of the deceased, were, by order of Court, on their prayer, made parties to the suit,

On the 7th of December, 1864 the Court rendered judgment, revoking and annulling the donation of the lot. From this judgment defendants have appealed. '

The only question necessary to be decided on this appeal is, whether the defendants are properly in Court ?

The citation served on the curator, appointed by the Court to represent defendants, was addressed “to Joseph P. Horner.”

The appellees contend that this address was sufficient.

We deem otherwise.

In ordinary proceedings, citation is tho very foundation of tho suit.

For purposes of justice, tho law allows, in certain cases, a fictitious citation in place of a real one, and it is necessary that the formalities required to operate tho legal fiction should be strictly observed.

When citation is addressed to the officer of the Court, through whom defendants are' to be brought into Court, the title of his office should bo stated in the citation, and defendants cannot bo considered bound by a citation neither addressed to them nor to the officer in his official character. 13 An. 405.

Joseph P. Horner, as curator ad hoc, filed an answer for defendants, and the appellees contend that, if there be a defect in the citation, it was cured by tho answer of the curator.

The curator had no capacity to act as such until served with regular process. See 12 Robertson, 541.

, It is decreed that the judgment of the District Court be reversed, and that the oase be remanded for further proceedings in accordance with law.

Appellees to pay the costs of appeal.