Cormier v. DeValcourt , 33 La. Ann. 1168 ( 1881 )

The opinion of the Court; was delivered by

Levy, J.

Julie Cormier, administratrix of the succession of Placide Guilbeau, deceased, instituted this suit on the 29th of June, 1874, against Theodore DeValcourt, administrator of the succession of Leontine Guilbeau, wherein she seeks to recover of' the defendant, representing said last named succession, the sum of $1736 05 with 8 per cent, per annum interest from 11th of June, 1864, on a promissory note for said sum signed by said Leontine Guilbeau, assisted and authorized by her husband, dated June 11th, 1864, payable on demand to Placide Guilbeau, Sr., or order. Defendant in his answer denied that any consideration had been given for the note, and alleged that it was null and void, and pleaded the prescription of one, three, five and ten years. There was judgment in favor of defendant, dismissing plaintiff’s suit and rejecting his demand at his costs, and plaintiff has appealed.

Leontine Guilbeau was separate in property from her husband, by a decree of court rendered in the year 1847, and administered her own property and affairs; the note sued on was given in renewal of one previously executed by her, and she had acknowledged it as her own debt. Being thus separate and administering her own affairs, there is no proof offered that the consideration of the note enured otherwise than to her individual benefit. The only question involved, then, is that of prescription. In 1869, and before the expiration of five years since the maturity of the note, a suit, No. 3038, was. instituted by the plaintiff thereon, the service of petition having'been acknowledged by Wm. Moúton, Esq., as attorney of the defendants, the heirs of Leontine Guilbeau. On appeal to the Supreme Court, the judgment in favor of plaintiff was reversed and there was judgment of nonsuit in favor of defendants. Within a short time after this decision of the Supreme Court the present action was brought. On the face of the note prescription had accrued, and this plea being made, it devolved upon the plaintiff to show interruption of prescription. Defendants rely upon the institution of suit No. 3038 and the service made therein, and on an alleged compromise or agreement in 1872 between plaintiff and the heirs of Leontine Guilbeau, as an acknowledgment and recognition of the debt evidenced by the note. Defendant denies that the attorney who acknowledged service of the petition in suit No. 3038 had been employed by the heirs or those representing them, and averred that such acknowledgment and waiver of citation was null and void and not binding on them, and deny the validity of the allege.d compromise or agreement in 1872, made after prescription had accrued and by parties unauthorized to bind them. We are satisfied, after careful examination of the record, that the acknowledgment of service of the petition in suit No. 3038 by the attorney was done without the authorization of the heirs of Leontine G-uilbeau, and that the proceedings in that suit do not, therefore, operate as an interruption of prescription. Even if the compromise or agreement was made with proper authority (which is not established by the evidence in the record), the acknowledgment or recognition, inferential at best, was made after prescription had accrued, and not being made in writing, could not operate as a renunciation. The service on a curator ad hoc of a minor must be made in person or at his domicil, and waiver of citation by such curator is not sufficient. 2S An. 215; 5 An. 551, 6 R. 142; 12 R. 540; 28 An. 258.

The judgment appealed from is affirmed with costs.