State ex rel. Meyer v. Estate of Griffin , 6 Pelt. 326 ( 1922 )

Dinkelspiel; J.

This is an application for writs of prohibition and mandamus, dlr'eoted to the Honorable Fred D. King, Judge of dsion.’’B" of the Civil Distriot Oourt for the Parish of rleans, and the olalm is that, relator filed in the Civil Distriot Oourt, executory proceedings against the Estate of Mrs. Sarah Griffin, widow of George Bradford Holmes; further alleging that the heirs of the said Mrs. Griffin reside outside of the State of Louisiana and that the Honorable Fred D, King,9ne of the Judges of the Civil Distriot Oourt, to whom said proceedings were alloted, appointed Meyer S. Dreifus, ourator ad hoo, to represent the said estate and the absent heirs of the deceased. Alleging further that said ourator ad hoo filed a suit to enjoin the said exeoutory proceedings, suggesting that the obligation.sued upon was (MMlptkMl and praying that an injunction without bond shoiB-d issue, and that relator having been served with a copy of petition for injunction and oited to appes-r and answer, filed an application direoted to the plaintiff, ordering him to furnish bond «.s seourity for oosts, whioh motion was granted and bond fixed at the sum .of Twenty Five Dollars. Subsequently, ourator ad hoo, having been served with the notice to give bond, moved that said order, be annulled, whioh motion was granted b$ the Judge and the order annulled. And alleging further that under the law, in any suit.or proceeding, a defendant is entitled to security for costs, and. that no proosedings can be hand in any suit until euoh seourity for 'oosts has been furnished and that in violation of law and the rights of relator, the Judga of said Oourt, annulled the order for bond, henoe this application for mandamus.

The Judge in kiaxa his return says that the relator in this case, Louis Meyer, is the original plaintiff in suit Ho. 140,859 of the Docket of the Oivil District Court and that he obtained on order for the issuanoe of a writ of executory prooess upon an obligation executed by one Mrs. Sarah Griffin, widow of George Bradford Holmes, on August 4th, 1913, payable one year after the date of its execution, and bearing interest at seven per oent from that date until .paid, paraphed by notarial aot and secured by a mortgage upon improved real estate within the Parish of Orleans, the maker of the note, according to allegation of the plaintiff's petition, died, no succession was opened and an allegation is made that the heir is a non-resident, whose whereabouts are unknown.

Under these allegations the Judge appointed the ourator ad hoo; curator filed a petition for injunction, whioh the Judge believed he was entitled to file, in accordance with Article 739 of the Code of Praotice, and Article 740, whioh exempted him from furnishing a bond and security for costs, and the Judge cites Section 4 of Act 136 of 1880.

And further the Judge answers that he considered that the plaintiff in the original suit had no right to avail himself of the Aot referred to, as he was, and is, strictly at all times, the plaintiff in the main unit demand, and the Aot is expressly reserved for the benefit of the defendant in the main suit, and that the faot that an injunction was applied for by the ourator ad hoo, appointed to represent the defendant, iát did not ohange the oharaoter of Louis Meyer from that of plaintiff to that of defendant so as to permit him to force a.n officer of ¿¡hJutxM the Court, appointed to represent an absent defendant;, to furnish a bond for costs in order to have that offloer fully perform his duty And the Judge preys that the writ in question be denied.

Section 4 of the Act 13S of 1880 provides:

"That the defendant in any cause or proceeding shall have the right to require the plaintiff or party proseouting thá same to give bond or other security in suoh amount as may be fixed by the Court, to secure the re-payment at final termination of the cause of all oosts expended by the defendant therein. That the order requiring such bond or security for oosts shall issue ex-parte on the application of the party, without oosts, and no further proceeding shall be had in suoh cause until suOh bond or security has been furnished,B

The other portions of the Act provide that in orse of failure to furnish bond, it shall operate as a dismissal/sad the proceedings as in oase of non-suit, and that in all oases the surety for oosts shall be considered a party to suoh suit pr proceeding, and shall be condemned for the amount of oo.sts recoverable in solido with the party oast in the final judgment in suoh proceeding,

A careful examination of this Act convinces us that under the law the plaintiff in injunction in this suit, was not such a plaintiff, as contemplated by the Act; he was representing the defendant, an absentee by an appointment of the Court and the mere faot that in hie opinion and the interest of justloe, under the olroumstanoes of this partioular case, that he thought it prddent to apply for the writ of injunction, did not ninutin&e constitute in - him-as a plaintiff but that heÉ simply' represented the absentee as if he .had been an original defendant in the suit, hence not being an Independent suit, was not required to give security for oosts.

In the case of State ex rel Kelson & Ppppleton against the Judge- of the Sixth District Court, Parish of Orleans, which case is in the 25th Ann. page 237, in the syllabus, the Court says-:

"Where the defendant, after pleading to the merits, made a reconventlonal demand, and -the judge refused to fix the cause for trial unless the defendant should give security for costs; held, that there is no Known law or practioe which could justify his conduct, end th-it none he-d been referred to by said judge."

In the body of the opihion the statement made in the syllabus is carried into effect.

Under these circumstances we do not consider that the mandamus herein prayed for should be allowed.

It is therefore ordered, .-¿judged end decreed, that the preliminary, order end the writ of mt-ndsmius direoted to the Judge be rescinded and' that the mandamus applied for be denied.

-Application for mandamus denied-