Bienvenu v. Factors' & Traders' Insurance , 33 La. Ann. 209 ( 1881 )

The opinion of the Court was delivered by

Marr, J.

Appellee moves to dismiss on three grounds:

1st. That the transcript is incomplete.

2d. That a previous appeal taken by the attorney and curator ad hoo representing defendant, appellant, has been dismissed because of the failure to file the transcript in time. See the case reported, 28 An. 901.

3d. That this previous appeal has been adopted by defendant, and made the basis of an injunction sued out by him to arrest the execution of a judgment in suit No. 27,061, of the Superior District Court.

First. A motion to dismiss for incompleteness of the transcript, or any mere informality, must be made within three judicial days after the filing. Murray vs. Bacon, 7 N. S. 271; Temple vs. Marshall, 11 An. 613.

Second. It has been uniformly decided, since the adoption of the Code of Practice, that when an appeal is dismissed for failure of the appellant to file the transcript in time, “it shall be considered as abandoned, and he shall not be aftewards allowed to renew it.” R. C. P. Art. 592; Rost vs. St. Frances Church, 5 N. S. 594; Champomier vs. Washington, 2 An. 723; Ducourneau vs. Levistones, 4 An. 30; Dwight vs. McMillen, 4 An. 350; Tarleton vs. Wofford, 15 An. 592; Succession of Andrews, 16 An. 340; Redmond vs. Mann, 24 An. 149.

These authorities also show that the failure to' file the transcript in time is .not a mere informality; and that the objection may be made at any time.

The counsel for appellant maintains that he was appointed attorney ad hoe, not curator ad hoc, as the law requires; that he appeared for and represented the defendant, and took the first appeal, under the impression that he had been regularly appointed curator ad hoc; and that appellant who has taken this appeal, propria persona, is not bound or precluded by anything that was done with respect to the first appeal.

In the original petition appellant is described as “ domiciled ” in the State of New York, and as being absent; and there is a prayer for the appointment of a curator ad hoc to represent him. A citation was issued to be served on him; and the return was that he could not be found, after diligent search and inquiry, and that the sheriff was credibly informed that he had no domicile in the State, “and now resides in the State of New York.”

There is an extract from the minutes of 6th November, purporting to be “ motion and order to appoint curator .ad hoc to represent Morris.” In drawing up the motion, which follows this caption, and which was made the order of the Court, the terms used are: “ It is ordered that B.. R. Forman, Esq., attorney and counselor at law, be appointed attorney ad hoc, to represent the absent defendant,” etc.

It also appears that there was charged on the Fee Docket “ notice to B. R. Forman, curator ad hoc,” and that this paper has been lost from the record, and cannot be found. The citation was addressed to “ Mr. B. R. Forman, curator ad hoc;” and, together with a copy of the petition, was served on “ B. R. Forman, curator ad hoc, in person,” on the 9th November, 1875. On this service, default was taken against the defendant, which recites that he, through his curator ad hoc, had failed to appear, although duly cited. Three days after, on the 26th November, Mr. Forman appeared, and had the default set aside, on suggesting that defendant“who is a citizen of New York,” will be present in the city ■about the 1st December, “ and that his presence is material and necessary for this mover to properly appear and answer, and represent the rights of the said Morris.”

On the 8th December, a default was again taken against defendant; and on the 10th December, “ on motion of B. R. Forman, appointed by the Court curator ad hoc,” etc., this default was set aside, and he was allowed to answer; and on that day he filed an answer which begins; ■"Now comes B. R. Forman, appointed by the Court curator ad hoc,” etc. 'This answer, which occupies nearly six pages of the transcript, gives the ■details of the claim set up by Morris to the property in question, calls ■•in a new party, and pleads a reconventional demand; and it is signed •“ B. R. Forman, curator ad hoc.”

Mr. Forman appeared as curator ad hoc, and represented defendant ■on the trial; and an extract from the minutes shows that, on the 20th December, when the case was taken under advisement, leave was •granted to “B. R. Forman, attorney and curator ad hoc of John A. Morris, to file a brief.” Judgment was rendered on the 28th January, and on 2d February, Mr. Forman, curator ad hoc, etc., moved for a new trial; and as curator ad hoc he moved for and obtained an order of appeal. In the body of the appeal bond he is described as “Benjamin R. For-man, attorney and curator ad hoc representing John A. Morris;” and the bond purports to be signed by “Benjamin R. 'Forman, attorney and •curator ad hoc representing John A. Morris.”

"We entertain no doubt of the legality and propriety of the appointment of Mr. Forman as curator ad hoc. The prayer of the petition is •that a curator ad hoc be appointed; and if the words “ attorney ad hoc” were a misdescription, it would have been effectually cured by the prayer of the petition, and by the citation addressed to and served on Mr. Forman as curator ad hoc. When he appeared and had the first default set aside, he thereby accepted the appointment as curator ad hoc, he accepted it again when he had the second default set aside; and through all the stages of this proceeding, he appeared and represented defendant.

TheR. C. C. Art. 56 requires the judge to appoint a curator ad hoc to defend the absentee against whom suit is brought, if he is not otherwise represented; and the R. O. P. Art. 116, requires the plaintiff, who intends to institute suit against a person who is absent and not represented, to demand that a curator ad hoc be named to defend the suit. Article 255, of the R. C. P., styles the person appointed to defend the absent defendant in an attachment, “ advócate;” and article 294 calls the person appointed to defend the absent owner of property against which proceeding in rem is taken to enforce a privilege, “ advocate.” Article 737, calls the person appointed to represent the absent mortgageor in a proceeding via executiva, “ attorney;” and the Act of 1857, p. 84, which authorizes clerks of courts to appoint “ curators ad hoc ” and “attorneys ad hoc,” to represent absent defendants, calls them, in thesuceeeding section, without distinction, “ attorneys.”

The words “ advocate ” and “ attorney,” as used in these several articles of the C. P. and the Act of 1857, are translations of the word “avocat,” which was used in the original French text of the C. P.. Laudais defines avocat, “ celui qui fait profession de dófendre des. causes en justice;” and Webster defines advocate, “ one who pleads the cause of another before any tribunal or judicial court.”

In Louisiana, and in most of the States, except where some special quality or function is to be designated, the same person is called, indifferently, attorney, counselor, advocate; and the words “ attorney ad' hoc,” “ curator ad hoc,” and “ advocate,” when used with respect to an absent defendant, indicate the person named and appointed by the Court to defend him in the suit in which the appointment is made.

We think the description of Mr. Forman in the body of the appeal bond, and in his signature to it as “ attorney and curator ad hoc, representing John A. Morris,” was not intended to indicate a change in his relations to Morris; and that he was, throughout the proceeding, acting, under the appointment of the Court, and not as the employed attorney and agent of Morris.

The curator ad hoc, cited and appearing as such under the appointment of the Court, binds the absent defendant, within the sphere and scope of his duty and functions; but he has no power to waive or to abandon any of the rights of the defendant. If Mr. Forman had prosecuted the appeal which he took, Morris would have been bound by the decree rendered on the appeal. The appeal, which was suspensive,, was dismissed because of the failure to file the transcript in time; and if Mr. Forman had been the employed attorney of Morris, his failure in this respect would, under article 594 of the C. P. and the authorities already cited, have been considered as an abandonment, if the appellant had not himself filed the transcript in time; and the appeal could not have been renewed; but as Mr. Forman was not the attorney, in the ordinary sense of the word, but was sim ply attorney ad hoc, or curator ad hoc, as this description is designed to show, the defendant Morris cannot be considered as having abandoned his right of appeal; and although the right to appeal suspensively no longer existed, because of the lapse of time, Morris had the right to appeal devolutively, as he has done, in person.

The motion to dismiss is, therefore, overruled.

A. B. and C. are owners undivideclly of lots of ground 1, 2 and 3. D. has a mortgage with the pact De non alienando on the one undivided third interest of C. in the three lots. A. B. and C. partition the three lots among themselves, and lot 3. is assigned to C. C. puts a mortgage upon said lot 3 of which he has become sole owner. E., the holder of this mortgage, forecloses it and buys in said lot 3 at sheriff’s sale. D. takes a judgment against G., seizes and sells his one undivided third interest in the three lots and buys it in, ignoring the previous adjudication to E. D. then brings a partition suit against A. and B., averring their respective one undivided one-third interest in the three lots; and he, in the same suit, has E. cited, and prays 'for judgment against him decreeing he has no title to lot 3. In answer to the partition suit, A. and B. admit the title of D., as alleged by him. Meld: that the pact JDe non alienando availed ID. in executing his judgment against C., as well as if he had proceeded to foreclose his mortgage by executory process; that ID. had the' right to cite E., in the partition suit, to defend the title he lay to lot 3; that quoad E., the suit is petitory and he must establish his title j that quoad A. and B. the suit is for a partition and their title is averred by the plaintiff and needs not be established; that the original extrajudicial partition between A. B. and C. did not affect the mortgages upon their respective undivided interests; that when C. gave a mortgage to E. upon lot 3, it only affected his one undivided third interest in said lot, and when E. foreclosed his mortgage and bought in, he only acquired that one undivided third interest, and only got a title defeasible by the pact De non alienando of ID.: that E., therefore, has no title to lot 3.

^PPEAL from the Sixth District Court, parish of Orleans. Saucier,

Chas. F. Claiborne for Plaintiff and Appellee:

Any alienation or encumbrance of property mortgaged with the pact of non-alienation, is void and of no effect, as against the mortgagee.

The third holder of such property is not a third possessor, nor entitled to the rights of one.

"The holder of a mortgage note secured with such a pact may proceed against the property and the mortgageor, without making party to his suit any third owner, either via executiva or via ordinaA'ia, and just as if the property had not changed owners.

A third owner can set up no defenses which the morgageor could not.

'The interpretation of laws are Tested Bights.

Gibson, Hall & Montgomery for the Insurance Company, on .same side:

A mortgage with the pact de non alienando is not affected by the encumbrance or alienation of the property so mortgaged.

'The owner of property acquired with such a mortgage resting on it can set up no defenses that the person who granted the mortgage could not, and he is not a third possessor, nor entitled to his rights.

Holders of notes secured by mortgage with the pact de non alienando, may disregard a third owner, and pursue the property and the person granting the mortgage, via executiva or via ordinaria.

B. B. Forman for John A. Morris, Defendant and Appellant:

First — Plaintiff (B) who alleges he is owner of only one-third of a property, has no legal interest to ask judicially a judgment decreeing that M has no title to the other two-thirds, and that they be given to O and ID. C. P., 15.