Monition of Hall , 21 La. Ann. 692 ( 1869 )

Howe, J.

On the fifth of January, 1867, by virtue of an order of seizure and sale, issued in executory proceedings in the suit of Hall, Rodd & Putnam v. Mrs. F. E. Laurence and husband, a plantation belonging to Mrs. Laurence was sold by the sheriff of St. Mary for cash at a little more than its appraised value and purchased by tbe appellee, John Hall.

The appellants, Mrs. Laurence and husband, opposed the confirmation and homologation of the monition afterward sued out by appellee on several grounds, which we will notice in the order in which they have been presented in tbe brief of their counsel.

I.That Mrs. Laurence was never authorized by her husband or by tbe judge to appear in the proceedings via executiva prior to the judgment therein.

The record shows that both husband and wife were made parties defendant, and that suffices.

II.That there is no necessity shown for the appointment of a curator ad hoc to the parties sued, because their absence from the State at the time is not sufficiently established by positive and competent evidence.

Tbe petition of tlie plaintiffs in the executory process averred that Mrs. Laurence and her husband resided somewhere in New York or New Jersey, and were absent from Louisiana, and not represented therein. We deem this sufficient. Frost v. McLeod, 19 Ann. 80. Tlie opponents in this proceeding have not even attempted to prove (as they might surely have done if such was the truth) that they were not absentees at the time the executory proceedings were taken.

III.That if the appointment by tbe judge of a representative to the opponents, as absentees, was necessary, this representative should have been an attorney, and not a curator ad hoc.

It is true that article 737 C. P. uses the word attorney, and its use in this case would have been desirable to save doubt, discussion and litigation; but the court will notice judicially who are its attorneys; and when we find that Henry Gibbon, Esq., was appointed curator ad hoc to represent the defendants, we may'properly treat the phrase curator ad hoc as surplusage, and omitting it, notice that an attorney of the court was appointed to represent the defendants.

IV. That Mrs. Laurence and her husband were not served with three days’ notice antecedent to the seizure.

The proper notice was served on Henry Gibbon, Esq., the attorney appointed to represent the defendants. It recites at length his appointment, and appears to make the proper demand.

Y. That the three days’ notice directed to the curator ad hoc should should have been directed and addressed to the parties themselves? although served on him.

We have not been referred to any authority in support of this proposition, and wo do not think it. correct. Where citation is issued against an absentee it is properly addressed, not to the absentee but to the curator ad hqc in cases where a. curator, is properly appointed. 13 Aim. 405. A fortiori in this case, where the notice is not a citation, but practically a notice of judgment merely, we think the direction,and address sufficient.

VI.' That neither the parties nor the curator were notified of the postponement of the sale from the third November, 1866, to the fifth January, 1867, and to appoint an appraiser that day.

The record shows that on the fifth January, 1867, an appraiser was appointed by the plaintiffs and one by the defendants ; that they were duly sworn, as well as the umpire who was afterward selected, and the defendants’ appraiser agreed to the valuation made by the umpire. We thus find the defendants possessed of actual knowledge of the timé of sale and taking part in its preliminaries. They cannot now s'ay that they had no notice to appoint an’ appraiser; and as to a notice of a postponement of the sale; the re-advertisement, which in this case was formal and regular, furnished all required information on this point. 11 Ann. 64; 12 Ann. 839.

VII. That the writ had already expired at the time of the sale, and no copy thereof was retained by the sheriff.

The sheriff was not bound to return the writ as in cases provided for by act of 1855, No. 199. It is not a writ of fieri facias. 18 An. 656. rfhe fact that the clerk subjoined to it a direction to return it in seventy days did not deprive it of vitality after that time had expired. The direction by the clerk was ultra vires, and must be treated as mere surplusage.

VIII. That Mrs. Laurence never appointed and named the appraiser, Jolin Tarlton, neither did the sheriff on her failure, nor any other person authorized by her or by the court so to do.

As before remarked, the record satisfies us that the appraiser, Tarl-ton, was appointed by the defendants. The testimony of Tarlton does not rebut this. He says he was requested by Mr. II. E. Laurence to act as appraiser, and so told the sheriff. But he does not say he was not appointed by Mr. Gibbon, the attorney, or by Mrs. Laurence also. ■ For the reasons given, it is ordered and adjudged that the judgment of the District Court be affirmed with costs.