
    No. 700.
    Henry Samory v. Samuel M. Montgomery.
    Where a party, whilst residing in Louisiana, executes a mortgage on his property here, and afterwards removes with his family to another State or country, and remains absent for two or three years, leaving no agent in charge of his property, or authorized to represent him, doi* housekeeper in possession of his former domicile and residence, with no known intention of returning, he must be regarded and treated by the mortgage creditor as an absentee, who in a suit against the property mortgaged, may cause a curator ad hoc to be appointed to represent the absentee, with whom pro-ceedings can be conducted contradictorily, and a valid judgment rendered against him.
    A non-resident is entitled to an appeal within two years from the date of the judgment of the lower’
    “Where a party takes an appeal, as an absentee within two yearsj but more than one year from the date of the judgment appealed from, he cannot, after the appeal is granted, claim to be a resident, for the purpose of defeating the judgment of the lower Court, rendered in conformity with the proceedings authorized by law, against absentees and non-residents.
    A PPEAL from tlie Third District Court of New Orleans, Sandlin, J.
    
    
      E. Eilleul and Bandell Hunt, for plaintiff and appellee.
    
      Wm. S. Sunt, for defendant and appellant.
    
      Brief of Randell Hunt, for plaintiff and appellee.
    —Samuel M. Montgomery appeals from a judgment rendered against him on the 8th December, 1863. His petition for an appeal was filed on the 15th July, 1865—more than nineteen months after the judgment was rendered and signed.
    He alleges that he is a resident of New Orleans; that the judgment was obtained during his temporary absence from the State, and that by law he had a right to take a devolutive appeal from said judgment at any time within two years from the day of rendition.
    The right of appeal is essential to the correct and pure administration of justice, but the public good requires that the right shall be exercised within a definite time, in order to put an end to litigation and uncertainty as to the law and the rights of individuals.
    Now, the law of this State, in regulating and fixing the time of appeal, has drawn a distinction between parties who claim the right. It divides them into two separate and distinctive classes—one class embracing and comprising all parties who reside in the State ; the other, all parties who are absent from it. To the former, it allows one year; to the latter, two years for the exercise of the right; but each class is limited to its alloted time, and is prohibited forever thereafter from exercising it. Code of Practice, Art. 593. “ No appeal will lie, except as regards minors, after a year has expired, to be computed from the day on which the final judgment was rendered, if the party claiming .the same reside in the State, and after two years if he be absent therefrom. ”
    Content with this distinction and division the law makes no further discrimination between parties claiming appeals. It does not subdivide, separate and distribute into different and subordinate classes those who reside in the State or those who are absent therefrom. It deals in the general, and avoids, rejects or ignores the special and particular. It prescribes one general rule for all who reside in the State, including every one who resides therein. In like manner, it prescribes one general rule for all who are absent from the State, including, every one absent therefrom. Every party, then, who claims an appeal must fall within one or the other of these categories. He must be included either in the class of those who reside in the State, or in the class of those who are absent from it. If included in the first class, his right of appeal is barred by the lapse of one year; if included in the class of the absent, his right extends through a period of two entire years.
    Now, Samuel M. Montgomery either resided in the State, or was absent therefrom. If he resided in the State, no appeal lay on the 15th July, 1865, the day of his petition of appeal, from the judgment rendered against him on the 8th December, 1863, because more than a year had expired after the judgment was rendered, and this Court must reject this appeal. But if, on the other hand, he was absent from the State, the the appeal did lie at the time he claimed it, because two years had not expired from the rendition and signing of the judgment. He can only maintain his appeal upon the ground that he did not reside in the State, and was absent therefrom.
    What, then, is his position ? Did he reside in the State ? If he did, his appeal is gone. If he did not, his entire argument against the judgment appealed from is futile. Which horn of the dilemna will he take ? * * * * -x- * *
    In this condition of things the question presented itself to the plaintiff; What was he to do to secure his rights, and to obtain the payment of the large amount due him by the defendant, and of which he stood much in need ?
    He had no alternative ; no means or recourse but to enforce his mortgage right. The act securing that right, contained a confession of judgment in his favor, and expressly conferred upon -him authority to seize and sell the mortgaged property under executory process. It went further, and waived and renounced, on the part of the mortgagor, the benefit of appraisement—dispensing with the'same, and empowering the mortgagee “ to seize and sell the property without appraisement. ”
    The plaintiff, however, did not proceed in this summary manner, although he might have lawfully pursued his remedy via execuliva under the mortgage, and might have had the property sold without appraisement, yet he would not. He adopted a milder course,.and proceeded via ordinaria. He obtained a judgment, and had the property appraised—a legal representative of Montgomery joining in the appraisement. All the other provisions of law, made for the purpose of securing to a debtor the full value of property sold under judgments of Courts of this State, were observed. The property was duly advertised, and all persons desirous of purchasing it had the opportunity of competing, for it. It was sold at auction; it brought more than two-thirds of its appraised value, and was adjudicated to the plaintiff, because he was the highest bidder for it. * * First. He contends that he was not properly and duly cited; that the appointment of a curator ad hoc to represent him was not warranted by law; that there was no coniesiaiio litis, and, therefore, that the judgment is a nullity.
    Second. That he had an attorney in fact, whose name appeared in the petition, and who was a resident of New Orleans, and no citation was served upon him.
    Third. The judgment, if not a nullity, must be restricted to the property mortgaged.
    Neither of these grounds is sufficient to support the defendant’s appeal. . Let us examine them in the order in which they are stated, and First. The allegation that he was not cited in the Court below, and that the appointment of a curator ad hoc to represent him was illegal.
    His argument, in support of this ground, is substantially:
    “ This is an action in personam. The petition and the notarial records annexed, show clearly that the acknowledged residence of the defendant was in New Orleans. The law required the citation and petition to be served on the defendant, in person; or, if he was absent to be delivered to a free person, apparently above the age of fourteen years, living in the house. C. R. Art. 187-89. There is no other mode in which the citation and the petition in this case could have been served. Art. 190 of the Code of Practice is express : “ The petition and citation must have been served on the defendant in person, or left at his domicile, in the manner provided in the two preceding articles.” They were not so served.”
    “The sheriff’s return on the citation was, “ that he learned the defendant was out of the State.” This was not a substantial, compliance with the Code of Practice. If the defendant was out of the State, he may have been temporarily absent, and the citation should have been served at his domicile, to which it appears he has since returned. It is not the act of inhabitance (or residence) which constitutes the domicile, but the fact coupled with the intention of remaining. The plaintiff, therefore, was not entitled to have a curator ad hoc appointed to represent the defendant. 'There was no citation, no conleslaiio litis in the case, and the judgment is a nullity.”
    The argument is well summed up by my learned colleague, Mr. Filleul, in these words: “ The theory upon which the appellant bases his hopes of success is, that the plaintiff’s action is a personal action, and that such an action cannot be prosecuted unless the defendant be served with process of citation, according to Arts. O'. P. 189, 190, that is, personally, or at his domicile. ” * * * *
    Our law declares, that an action by which a person proceeds against one who is personally bound towards him, in order to compel him to pay what he owes to him, is a personal action ; and it is called personal because, it is attached to the person bound, and follows him everywhere. It lies against him who has bound himself personally and independently of the property which he possesses. C. P., Art. 326. On the other hand, a real action relates to claims on immovable property or to the rights to which they are subjected. It lies to enforce the rights which a party possesses upon property. It not only lies against the debtor, in whose hands the property -is, but it lies also against him who, without having contracted any obligation towards the plaintiff, is nevertheless bound towards him as the possessor of immovable property, on which the plaintiff claims a right. The action which the creditor brings, in order to have property which has been hypothecated or mortgaged to him by his debtor, seized and sold for the payment of his debt, is a real action. Where the creditor has no executory title against his debtor, he can only seize and sell hypothecated property after having obtained judgment in the usual form. But where he has such a title he may proceed either via executiva or via ordinaria. C. P., Arts. 7, 41, 42, 61, 62, 63. The mixed action partakes both of the real and the personal action.
    Now, what was the action instituted in this case ? What was its object? What judgment did it seek ?
    The plaintiff, in his petition, alleged himself to be the owner of certain promissory notes, amounting to $15,640, exclusive of interest, drawn by the defendant, and secured by mortgage of a certain lot of ground, with the buildings thereon, forming the corner of Camp and Common streets, in this city. He prayed that the defendant be cited to appear and answer, and after due proceedings, condemned to pay the amount, with mortgage privilege upon the property described.
    Citation was issued. The sheriff returned it, endorsed as follows: Received, November 9th, 1863, After diligent search and inquiry made, S. McCutcheon Montgomery could not be found, and I learned that he was out of the State. Returned, November 18th, 1863.
    The plaintiff thereupon presented a supplemental petition to the Court, in which he set forth the absence of the defendant from the State. He alleged, “that he has instituted before this Court a suit against the defendant, a resident of this city, founded on obligations secured by mortgage; that the said defendant has been- (ordered to be) duly cited, but after diligent search, and inquiry made lie could not be found, and the competent officer charged to deliver him the petition and citation, was informed that he was out of the State, as it fully appears by the sheriff’s return of the papers made in this case,” He proceeded to allege further, that “ this suit is instituted for the purpose of subjecting the mortgaged property to the payment of said debt; but, as the said Samuel McCutcheon Montgomery is absent from the State, it is necessary to appoint a curator adhoc to represent him, in order that judgment may be rendered contradictorily with the said curator in this suit.”
    The Court appointed a curator ad hoc, and after - due proceedings, rendered a judgment in favor of the plaintiff and against the defendant, for the amount claimed, with lien and privilege on the property mortgaged.
    I leave this point with simply quoting the statement from 2d Annual, already referred to:
    “ One who owns real estate in this State, specially mortgaged to secure the payment of a note, and is not represented by any agent authorized to defend suits instituted against him, may be sued for the purpose of subjecting the mortgaged property to the payment of the debt, by.the appointment of a curator to represent him; a judgment rendered contradictorily with such curator will be binding on the absentee, as far as it can be executed on the property specially affected, in favor of the creditor. Such judgment can have no effect beyond the property mortgaged.”
    And now I proceed to examine the second link in the chain of the defendant’s argument. He says:
    “ The petition and notarial acts annexed to it, show that the defendant was a resident of Now Orleans. He repeats this, with a mere verbal change, in the same page: “ The plaintiff’s petition, and the notarial acts annexed to it, establish the fact that the defendant was a resident of New Orleans.” And then again repeats it as a matter proved; in a subsequent page: “ The plaintiff’s petition, and the notarial records annexed, show clearly, as already seen, that the acknowledged residence of the defendant was in New Orleans. He, therefore, should have been served at that acknowledged residence, as the Code of Practice requires.”
    This position is utterly irreconcilable with that hitherto maintained by the defendant. The Court has seen that if a party reside in the State he cannot appeal after a year has expired, from the day on which a final judgment was rendered against him, and that Montgomery now claims the appeal nineteen months after the judgment in this case was rendered against him, upon the ground that he did not reside in the State, and was absent therefrom. How then can he say that he was a resident of this State ? He is precluded from making the assertion by the very fact of appearing before the Court. * * *
    This leads me to the examination of other links in the defendant’s chain of argument. He says:
    “ The Code of Practice requires citation and petition to be served, by being delivered to a defendant in person, or by being left at his domicile; jf he be qbsent, with a free person, apparently above the age of fourteen years, living in the house.” C. P. Arts. 87, 88. 89 and 90. The Supreme Court has decided that the return of the sheriff should, on all occasions, follow substantially these words of the Code of Practice ; but the sheriff did not, in this case, serve the petition and citation on Montgomery in person, nor leave them at his domicile in the manner provided by law, His return on the citation, that he learned the defendant was out of the State, was not a substantial compliance with the Code of Practice, and did not authorize the appointment of a curator ad hoc to represent the defendant. The defendant may have been temporarily absent, as proves to have been the case, and citation should have been served at his domicile, to which it appears he has since returned. He was not an absentee, in the sense of the Code, authorizing the appointment of a curator ad hoc.
    
    The term absentee embraces a person who has resided in the State, and has departed without leaving any one to represent him. It means, also, the person who never was domicilated in the State, and resided abroad. C. C. Art. 3522, No. 3. The Code thus declares a person an absentee only when he has abandoned his domicile in this State, with the intention of not returning within any definite period. The judgment is a nullity for want of citation. ”
    The greater part of this has already been refuted in simply investigating the fact of Montgomery’s residence. Such is the force of truth ! Error flies before it, or falls prostrate and harmless at its feet. The sheriff could not serve the citation personally upon Montgomery in New Orleans, because Montgomery was absent from the State. He could not leave it at his domicile or residence, because Montgomery had no domicile in New Orleans. The record proves that his family was in Virginia from the beginning of the month of December, 1861, and that he himself left New Orleans in January, 1862, and never returned until July, 1865. He thus departed from the State, and was absent from it nearly a year before the proceedings in the case were begun—without making any provision for the payment of his debts to the plaintiff, and without leaving a domicile in it occupied by his family, at which legal notice could be served upon him.
    Having rendered it physically and legally impossible for the sheriff to serve a citation upon him in person or at his domicile, nothing was left for that officer, to whom the citation hadbeen issued to b,e served, and who had vainly made diligent search and inquiry after him, and had learned that he was out of the State, but to return the citation and state the facts to the Court. This was done in the manner I have described. If any attempt had been made by the plaintiff to obtain a judgment by default upon this return, the Court would undoubtedly have refused it, because of the insufficiency of the return. If, from inadvertency or error, the Court below had granted and afterwards confirmed such a judgment, this Court, upon a proper application, would certainly have set it aside. But the plaintiff made no such attempt. Nor did he sue out a new citation to be served on the defendant, for he knew it would be vain and impossible to serve it, or make any further attempt to bring the defendant into Court by this means. He saw, then, that it was useless to hope for any judgment rendered upon citation. What, was he to do ?
    
      Here was Montgomery, a person absent from the State, but who owned property in it,, which gave jurisdiction to the Court; that property was specially mortgaged to secure the payment of the notes on which the plaintiff was suing, and Montgomery was unrepresented by an agent authorized to defend suits against him. Did he belong to the class of absentees, who may be brought before our Courts through curators ?
    The first chapter of the third title of the Louisiana Code, which treats of the euratorship of absentees, provides for the appointment of curators for the benefit of those persons, in order that their estates may be administered and their interests protected. The fifty-seventh article of the chapter afterwards provides curators to them, in particular cases, for the benefit of persons who may have suits to institute against absentees, and are unable to commence them, because the absentees cannot be arrested, nor citation served either personally or at their domicile. C. C., Arts. 60 and 57, George v. Fitzgerald, 12 La. 600.
    The Article 116, of the Code of Practice, contains a very similar provision to that of Article 57 of the Civil Code.
    A question soon arose, and was presented to the Supreme Court: What is the meaning of the words “absent” and “absentee,” in those provisions of our law ?
    The Article 3522, of the Civil Code, de verborum significations was referred to, and the definition relied on by Montgomery, was examined. It was determined that the part of it in these words: “Absentee is the person who has resided in the State, and has departed without having any one to represent him ”—included persons who temporarily resided out of the State, as well as those who abandoned their domicile therein permanently, and that persons who leave the State and reside abroad, with the intention of returning within a definite time, are such absentees as may have their property in the State subjected to the payment of their just debts, through curators duly appointed to represent them; and this is in conformity with the obvious dictates of justice and enlightened public policy. * *
    The first case, in which the appointment of a curator ad hoc to represen t an absent defendant, under the provisions of this Code, was presented to the Court—was one of great interest—not ■ only from its novelty, but from the distinguished character of the defendant, and the circumstances under which he was sued.
    Edward Livingston was a practising lawyer at the bar of New Orleans, of great eminence and ability, remarkable at once for powers of learning, eloquence and powers of argument. He came to New Orleans soon after the acquisition of Louisiana by the United States, and fixed his domicile in the State. He continued to reside here with his family until the year 1825, when he was elected a member of the House of Representatives of the United States from this State. He went'to "Washington to discharge his official duties, with the intention of returning to his home in Louisiana, the seat of his affections, after the expiration of his term of office. While he was in attendance on Congress he was sued by one Ramsey, who, on the sheriff’s return, that Livingston was not to be found in New Orleans, had a curator ad hoc appointed to represent him. Under these circumstances, the question was presented to the Court, whether Livingston was an absentee in the sense in which, that word is used, in the part of the Code that treats of the appointment of curators ? The question was ably argued, and the Supreme Court of the State, after careful consideration, unanimously held that he was. Neither the fact that he was absent on public service, nor that the office of a member of the House of Representatives was merely temporary for a term of two years only, nor the provision of law, that a citizen accepting such an office retains his ancient domicile, (0. C. Art. 46) was considered as excepting him from the class of absentees. The Court said:
    “ Curators are appointed at times for the interest of the absentee; at others, for that of the creditors; as when he leaves his concerns in such a situation that those creditors cannot establish their claims or enforce payment. In such a case justice as forcibly requires the appointment of a curator to a person absent on public duty as to any other person.
    In 12th La. the Court declared: “That previous to the promulgation of the Louisiana Code and Code of Practice, the appointment of a curator ad hoc to an absentee was not authorized by law. But our present Codes seem to have provided for all eases in which absent persons may be interested, or in which rights are to be exercised by or against them, whether domiciliated in or out of the State. ”
    The interpretation thus given by the Court to the term “absentee,” has been steadily adhered to ever since 1825. I refer to the cases in the Reports, some of which arc selected and cited by my colleague in his brief for an unbroken current of authority upon this point, running down even to the case in whicn this Court has decided upon a similar question, that Charles M. Conrad, whose domicile was in New Orleans, but who was a representative from this State in the House of Representatives of the late so-called Confederate States, was to be considered an absentee from the State, and as such entitled to appeal from a judgment against him at any time within two years after it became final in the Court below. Lambert v. Conrad, 18 A. 145.
    Montgomery, then, was clearly an absentee, and the plaintiff had a right to cause him to be represented by a curator ad hoc. Nor is this right in any way affected by the fact, that the plaintiff apparently endeavored at first to bring Montgomery into Court by the ordinary means of citation.
    The law has not provided for the manner in which the absence of a •defendant must be proved, in order to justify the appointment of a curator ad hoc, but wisely leaves it to the discretion of the Court authorized to make the appointment. The 57th Article of the Civil Code merely declares, “ that the Judge shall appoint a curator ad hoc, to defend the absentee;” and the 116th Article of the Code of Practice, “ that a curator ad hoc be named to defend the suit.”
    The practice in the Courts has been for the Judge to appoint a curator, either upon the return of the sheriff, showing the absence of the defendant, or upon the oath of the plaintiff himself, or of a third party, and even of the plaintiff’s son, (who is, under the general law, incompetent to testify in any manner in which his parent is concerned) to the absence of the defendant, and sometimes upon a mere suggestion unsupported by oath.
    
      In the case of Livingston, the curator was appointed on the sheriff’s return. In the case of Ferguson, the curator was appointed upon the statement in the petition. In the case of Gooley, 9th La, p. 78, upon the oath of the plaintiff’s son.
    In the present case, the absence of the defendant was suggested by the plaintiff in the petition praying for the appointment of a curator, was supported by the return of the sheriff, a sworn -.officer of the Oourt ; is distinctly admitted to be true by the defendant himself in his petition of appeal, and is placed beyond the possibility of a doubt by the other evidence in the record. It is equally well established, that the defendant and his family were absent from and resided out of the State ; had no domicile here, and no agent authorized to defend him in Oourt, as I will hereafter demonstrate. It is clear, then, that this is a case in 'which the appointment of a curator ad hoc was absolutely necessary, and that the Judge acted wisely in making an appointment, and, I may add, in the selection of the individual appointed, a member of the bar, of integrity, and attentive to every interest entrusted to him.
    Under our law, the appointment of a curator ad hoo to an absent defendant, authorizes the service of all requisite notices in the case to be made upon the curator, with whom the suit must be carried on contradictorily until the final judgment. In 4th La., Judge'Mathews said: “Defendant being absent could not be cited in the ordinary mode prescribed by law, and the curator may be supposed to supply the place of citation. ” In the 5th La. 489, Judge Porter said : “ That the curator was enabled, after his appointment, to answer to the petition and to act for the defendant, and that it could not be considered an objection to the regularity of the cause.” In 9 th La. 77, Judge Martin said : “As the curator ad hoc is the person against whom the proceedings are to be conducted contradictorily between him and the plaintiff, it follows, as a consequence therefrom, that upon him the citation is to be served ; and the construction which would require the previous citation of the party, would be the cursed one, which corrodes and destroys the text.” I need not cite further authorities on this point, for it is an established principle invariably recognized by our Courts. When then the defendant says, that there was “ no citation,” and “ no coniesialio lilis” in the case, I point to the record before the Oourt; to the appointment of the curator, and the proceedings had prior to his appointment; to the sheriff’s return, establishing the service of the petition and citation upon him, to the answer of the curator to the petition ; to his appearance in the Court contradictorily with the plaintiff, on the trial of the cause, and to the judgment rendered in the Oourt a quo ; as conclusive proof that there was a “ citation ” and “ a coniesialio lilis,” such as the law demands to legalize the judgment. * * * *
    I pause here for the present for the purpose of collecting the links in the defendant’s argument that I have examined, and of exposing their true condition as I place them before the Oourt.
    He appears in this Court as an absentee from the State, claiming the right of appeal from a final judgment against him, rendered nineteen months prior to his petition for the appeal; and at the same time he ’contends that he was not an absentee, and is entitled to the benefit of laws passed for residents only. * *
    I think I have now shown that every link of defendant’s argument, upon the first and main point on which he asks that the judgment in this case be set aside, is defective and imperfect, cracked and flawy, and must be condemned and rejected by the Court.
    The second ground on which defendant asks that the judgment be set aside, is:
    Second. “ The petition of the plaintiff, and one of the acts of mortgage making part of it, show that P. E. Bonford, a resident of New Orleans, was the agent and attorney in fact of the defendant. The appointment of a curator ad hoc, therefore, was not warranted by law. ”
    Upon this point my colleague has said : ‘ ‘ The name and life of P. E. Bonford belong to the history of the late war, and the part that Louisiana took in that conflict.
    All writers on evidence agree that .historical facts need not be proved, and upon this principle I am authorized to state that it is well known that the lamented Mr. Bonford espoused the cause of secession with great zeal; that he left New Orleans in April, 1862, when the Federal forces arrived here ; that he linked his fortune to that of the Confederacy ; that he was made a Judge of the Supreme Court organized by Governor Allen, the then Governor of that portion of the State which was then in rebellion against the- United States, and died in the Confederate lines. It was impossible, therefore, to serve citation on him, even if he was empowered to represent the defendant, which is denied. ”
    The power of attorney given to Mr. Bonford, was limited and specific. It is not shown to have been such as to authorize him to represent Montgomery in Court, and to allow legal proceedings to be carried on under it, contradictorily with him so as to bind Montgomery. He could not, therefore, be legally cited. 9 L. 77.
    It is unnecessary to add anything to this. I pass, therefore, to the third ground on which the defendant asks that the judgment be set aside, namely:
    Third. The judgment must be restricted in its operations exclusively to the property mortgaged, beyond which it can have no effect, and can possess none of the attributes of a judgment in personam.
    
    I concur entirely in the proposition. Before I bring to the notice of the Court the authorities with which I desire to close this argument, there is one circumstance which has continually presented itself to my mind, in the consideration of this case, and which I have no doubt has suggested itself to the Court, .upon which I will say a few words. If the defendant was only temporarily absent from the State ; if he really had a domicile in it; if he had any person there on whom citation could be served ; and if he thought all or any of these facts would be of service to him in annulling the judgment of which he complains, and had any proof to establish them ; why did he.not proceed by an action of nullity, and produce, or offer to produce testimony to prove the facts ? Upon his theory of the law—a theory which we deny, and have shoivn to be incorrect—what would have been easier than for him (if his assertions be true) to bring forward his witnesses, and prove them ? His failure t ■ attempt this can only be ascribed to the fact, that he knew the plaintiff would disprove every one of his assertions; and that, therefore, even with his theory of the case, it was wiser for him to rely upon vague intimations, the supposed absence of proofs of the negative and bold assumptions, than to meet the plaintiff upon the fair and equal ground of legal proof.
    And now I submit the authorities to which I have alluded. They point out the course that ought to be pursued by creditors in cases like the present, and show that the plaintiff has pursued precisely that course, and that the judgment rendered in his favor is valid in law, as it undoubtedly is founded on justice.
    The defendant, indeed, does not pretend that he did not owe the debt for which the judgment was rendered ; on the contrary, he himself gave the confession' of judgment that it was due. He does not pretend that he has been deprived of any means of defence ; on the contrary, he admits that he had no defence. He cannot pretend that the suit was brought with greedy and oppressive haste ; on the contrary, he is obliged to admit that the plaintiff waited two full years after the debt was due, before he instituted his action. The only ground on which he hopes to succeed, is one of mere sheer, dry technicality. Delusive hope! The law combines with equity in upholding the judgment of the defendant. But to the oases.
    In Millaudon v. Beazley, 2d An. 960, the plaintiff sued upon two promissory notes, secured by a special mortgage. The defendant being an absentee, a curator ad hoc was appointed to represent him. It was objected, that the defendant could not be brought into Court by a curator ad hoc. The Supreme Court said : The defendant owned property in the State, which was specially mortgaged to secure the plaintiff’s claim, and in such cases our laws expressly permit absentees to be proceeded against judicially, upon being represented by a curator adhoc. C. C. 57; C. P. 116. * * * *
    
      Brief of E. Filleui—Additional brief of plaintiff and appellee.
    —The appellant having filed his brief on the very day fixed for the argument of this case, it was impossible for the appellee to answer to the points made for the first time on appeal.
    The appellee will, therefore, beg leave of the Court to file additional argument in answer to the appellant.
    The theory upon which the appellant bases his hopes of success is, that the plaintiff’s action is a personal action, and that such an action cannot be prosecuted, unless the defendant be served with process of citation according to the Arts. 189, 190, that is, personally, or at his domicile. The appellant argues also en désespoir de cause, that the appointment of a curator ad hoc was unauthorized, and the service of citation should have been made at the last domicile of the defendant, according to Article 167 C. P., while there is not in the whole record an iota of evidence to bring him within the operation of that Article, 167 C. P.
    The defendant did not prove, and does not allege, that if citation had been left at his last domicile, it would have reached him, nor do the circumstances of this case tend to prove that he had removed within a short 
      radius in. the same parish, or aneighb orin gone, wherehe could have repaired to the old domicile, or where the information that a suit instituted against him could have reached him. But let us remark that this Article 167, C. P., was not enacted with a view of conferring any privileges on the defendant, but in odio debitoris dolosi; that, therefore, it would be difficult to imagine a case where this Article would operate in favor of one whose conduct has been the cause of uncertainty about his real domicile.
    It is an easy task to show the fallacy of the premises, upon which the appellant rests his reasoning, and draws his conclusions. If his premises are wrong, his conclusions must be wrong, because in logic, correct and true conclusions and consequences can never flow from wrong premises.
    And first. What is the nature of the action ? The record shows that it is a suit to foreclose a mortgage, to subject real property to the satisfaction of a mortgage.
    This is the highest and purest type of the real action, and the one always quoted by illustration or example of a definition of the real action. “ L’action est réelle, parcequ’elle émane du droit que nous avons sur uno chose. Ex jure quod quis in re habet profiscitur actio in rem et peu importe quel soit le droit; domaine directe ou utile usufruit servitude ou gage.” • Encyclopédie, Yerbo Actions. Article de Mr. Marie.
    This definition of the real action is the same in the Louisiana Code of Practice. Arts. 41, 42.
    Article 61, C. P., says : That an hypothecary action is a real action, which the creditor brings against the property which has been hypothecated to him by his debtor in order to have it seized and sold for the payment of his debts. See also Arts. 62, 63.
    Thisis the action which has been instituted by the plaintiff. According to Article 63, C. P., the plaintiff having a title importing a confession of judgment, could have demanded that the property mortgaged to him should be seized and sold immediately.
    Instead of resorting directly to this summary proceeding, showing more leniency to his debtor, the plaintiff proceeded via ordinaria. It is with a bad grace that objection is made to this form of proceeding by the appellant, but the objection is of no avail, because all civil actions may be prosecuted via ordinaria, C. P., 95 to 98.
    The form of proceeding does not change the character or the nature of the action, and a real action prosecuted via ordinaria preserves its character of real action, just as much as if it was prosecuted in an executory or summary way. .
    Those premises being well established, let us examine what steps were taken to bring the property of the defendant into Court, and to have it seized and sold by the sheriff to satisfy the mortgage of the plaintiff.
    ■ In the first place, in the body of the petition, he could have suggested to the Court that the defendant was absent, and upon this bare suggestion the Court, in the exercise of a wise and sound discretion, could have legally appointed a curator ad hoc, to represent the absent defendant.
    We know perfectly well that this suggestion is usually verified by the oath'of the plaintiff, or by some other preliminary showing, but we do not consider it essential, because it is not written in the Article 116 of the Code of Practice, and Article 57 of the Civil Code—which are the only fountains and sources from which is derived the right of the Court to appoint curators ad hoc to absent defendants. (See arguments of the' original brief.) In the case of Cooleys. Seymour, 9 L. R. p. 78. The suggestion to appoint the curator ad hoc was supported by the oath of the son of the plaintiff.
    The oath of a plaintiff’s son is certainly entitled to no more weight and value than a mere suggestion of the plaintiff himself. The Supreme Court paid no attention to the objection raised in that case, and considered that by appointing the curator ad hoc, the Court had wisely used its discretion.
    My conviction is irresistible that it is so ; because the co-relative of Art. 57, C. C. and 116 C. P. are found in Arts. 267, 268, 614 C. P., which give the right to the absent defendant of annulling the judgment rendered against him, upon proving that the allegations of the plaintiff were untrue. It was a right of which the defendant could have availed himself. But as he has not done so, w'e have the right to assert that he did not do so, because he knew that all our allegations are true, and that we could prove them to be so at any time.
    The plaintiff, by an excess of precaution, (this case being an important one) thought that it would be better to prove beyond a doubt, the absence ■ of the defendant, and the impossibility of serving any citation on him, either personally or constructively. He, therefore, resorted to the best' and highest mode of proving the absence of the defendant.
    On the 9th November, 1863, he placed the citation and petition in the hands of the sheriff, and on the 18th, he obtained what he thought the-highest evidence of the defendant’s absence, in the sheriff’s return in these words: “After diligent search and inquiry, the defendant could, not be found, and I learned that he was out of the State.” If the sheriff of the parish who is acquainted, or is presumed by law to be acquainted with every resident of the territory of his jurisdiction, who summons all jurymen, attends at all the State elections, and summoning all the witnesses before all the Courts of his territorial sheriffalty, after diligent search and inquiry for nine days, has been unable to find in the city of New Orleans, a man who had mortgaged his real estate property for upwards of S16,000, in gold, who belongs to one of the most ancient and wealthiest families of the city. That if the said sheriff was unable to find out his last domicile, the plaintiff had certainly acquired the right and conscience to say that the utmost diligence had been used, and tho Judge about to exercise a wise discretion, could certainly rest at peace at night, and when laying his head on his pillow, he might with satisfaction, say that he certainly had not wronged the defendant in appointing a curator ad hoc to represent him and his property ; that he certainly was truly absent, and that there was nobody in charge of his property ,* and, that if there was a chance to use this discretion, and appoint a curator ad hoc—this was the very case which the legislator, no doubt, had in contemplation.
    But, supposing that the defendant had a last domicile, an expression which is almost without meaning by the difficulty of understanding what ideas it conveys, what relations there are between the person and the last domicile, and how long, and when, and how a person preserves his last domicile. The service could not have been made at this last domicile, as Your Honors will see by the following decisions: I must remark that the privilege of citing a defendant at his last domicile is given by law to the plaintiff, for the purpose of punishing cunning or fraudulent debtors who avoid the suits of their creditors, and that it is strange, and passing-strange, that a party who puts obstacles in the way of his creditors, should reap any benefit of his misconduct, and of a state of uncertainty created by himself to prevent the legitimate prosecution of his creditor’s claim, and should use as a weapon the shield and sword which the law has put on the body and in the hands of his opponent. See C. P. 187, and C. C. Article 42.
    In logic and in law, a man has but one domicile, and the citation must be left at that domicile, when it is not served personally. C. C., Articles 189, 190.
    In November, 1863, the defendant had no domicile in New Orleans ; he ' had left it a long time before ; he was residing out of the State with his ■wife, and we are going to prove it, and prove it by authentic act and by record. And though the sheriff’s return is not attacked, we will render it unassailable. * - * * *
    The extravagant value affixed by the defendant to the property mortgaged by him is not proved by the record; we will manifest our respect for the Court, in not answering to this strange and disrespectful allegation; we are convinced that the Court will not consider anything upon which issue has not been fairly joined as proved by the record.
    
      Brief of W. H. Hunt, for defendant and appellant.
    —On the 10th of November, 1863, Henry Samory instituted a personal action in the Third District Court against Samuel M. Montgomery, a resident of New Orleans, to recover—first, the sum of $15,640, exclusive of costs and interest, the amount of four promissory notes, drawn by the defendant tó his own order, and by him endorsed ; three of $5,000 each, dated New Orleans, 24th'of May, 1861, and payable six months after date, and the other for the sum of $640, drawn by the defendant to his own order, and by him endorsed, through his agent, E. E. Bonford, dated New Orleans, January 13th, 1862, and payable twelve months after date ; and second, another sum of $782, for attorney’s fees. These four notes were secured by mortgage, by public acts passed before Edward Barnett, Notary Public, on May 28th, 1861, and 13th January, 1862, on a certain lot of ground, with the buildings and improvements thereon, in this city, forming the corner of Camp and Common streets. The plaintiff prayed that the defendant be cited to appear and answer, and that after legal delay and due proceedings had, he be condemned to pay the amounts claimed, with mortgage and privilege on this property.
    Citation issued, addressed to the defendant, and was returned by the sheriff on the 18th November, with this endorsement: “ After diligent search and enquiry made, S. McCutcheon Montgomery could not be found, and I learned that he was out of the State. ”
    The plaintiff, on the return of this citation, filed a supplemental petition, praying the Court to appoint a curator ad hoe to represent the' defendant, and that he might be cited through such curator ad hoc. The Court appointed a curator ad hoc, who filed for answer a general denial. The cause was tried, and a personal judgment was rendered against the defendant for the amount of the plaintiff’s claim, with privilege on the property mortgaged.
    The plaintiff, thereupon, caused a fieri facias to issue on the judgment, and the mortgaged property was seized and sold by the 'Sheriff, on the 5th February, 1864, and adjudicated to the plaintiff for the sum of $14,000.
    The defendant has appealed, and now asks that the judgment and sale be set aside, on the following grounds :
    First. This is an action in personam. The petition and the notarial acts annexed to it, show that the defendant was a resident of New Oi-leans. The returns of the sheriff, on the citation, do not show that the defendant had changed his place of residence by departing permanently from the State. The petition and citation should, therefore, have been served at the domicile of the defendant, as directed by the Code of Practice, Arts. 189 and 190 ; and the appointment of a curator ad hoc was not warranted by law, under the circumstances.
    The correctness of the judgment appealed from is to be determined upon the evidence in the record. The plaintiff having obtained, without legal citation, as the appellant contends, a judgment against the defendant, caused his property, worth to-day some $70,000, to be seized and sold by the sheriff, and bought it in for only $14,000. It is but natural that, under such circumstances of hardship, the defendant should ask the Court to scrutinize closely the legality of the means by which he is sought to be subjected to a sacrifice so ruinous to himself, and so highly advantageous to his creditor.
    It is to be borne in mind that this is not an executory proceeding, or an action in rem, but an action in personam. The judgment of the Court a quo is against the defendant for the amount of the notes and attorney’s fees sued for.
    The plaintiff’s petition and the notarial acts annexed to it, establish the fact that the defendant was a resident of New Orleans. The answer of the curator ad hoc does not contradict the fact. The citation was addressed to the defendant in person. The return of the sheriff, upon the citation, constitutes the only evidence on which the right'to have the defendant represented by a curator ad hoc, depends.
    The plainest principles of law and justice require that every man should have a full opportunity of being heard in his defence, when suit is brought against him. This opportunity can only be afforded by giving him notice of such suit. This notice the law requires to be given by the service of citation upon him. Such service may be actual or constructive. If service be made personally upon the party, he has received actual notice. But “ when, from certain facts the law implies notice in judicial proceedings, they must all concur, in order to establish such constructive notice.” 16 La. 596.
    These principles are obviously wise and just. They are established by textual provisions in our law, and in an unbroken series of decisions from the earliest days of our jurisprudence down to the present time.
    
      A careful examination of this return shows nothing to warrant the presumption, that the defendant had left the State permanently, or was an absentee in the meaning of the law. The term absentee “embraces a person who has resided in the State, and has departed without leaving' any one to represent him. It means, also, the person who never was domiciliated in the State, and resides abroad.” O. 0., Art. 3522, No. 3. The Code thus declares a person an absentee, only when he has abandoned his domicile in this State, with the intention of not returning within any definite period ; and, evidently, does not mean that a party temporarily absent from home, even though out of the State, has abandoned his residence in this State, and become in legal acceptation, an absentee. If a different construction be placed on the provisions of the law, the most unjust and ruinous consequences would flow from it. Any citizen, whose footsteps lead him, by chance or design, to cross the boundaries of Louisiana, even for a day, would then become an absentee, whose property would be liable to attachment, and whose interests would be committed to the mere formal'protection of a curator ad hoc. The sheriff’s return, in this case, does not state that he had learned that the defendant had permanently left the State, but merely that he “ learned he was out of the State. ” If he was out' of the State, he may have been temporarily absent, as proves to have been the case, and citation should have been served at his'domicile, to which it appears he has since returned.
    In the' case of Brown v. Trent, 12 L. G03, the defendant was sued as a citizen of the parish of O uachita, where he had his domicile. At the time the notice of judgment was served, he had removed, either temporarily or permanently from the State. The Court decided: “If the absence was temporary, he certainly has not lost his domicile ; and if permanent, 'the house in which he last lived, is the one where the citation 'should be served.”
    In the case of Sparks v. Weaiherby, 10 L. 595, the Court said: “When there has been no personal service of a citation, its want can be supplied only by pursuing strictly the provisions of law, which substitute for it any other species of service. The Code of Practice, Art. 189, requires that f‘ service must be made, by leaving copies oí the citation and petition at the usual place of domicile or residence of the defendant; if he be absent, by delivering them to a free person, apparently above the age of fourteen years, living in the house. ” * * * The expressions, in the above article, evidently contemplate a temporary absence ; arid the provision itself is based on the presumption, that the party sued will receive intelligence from citation being made where he usually resides. ”
    A change of domicile must be shown by express and positive evidence. So long as any reasonable doubt remains, the legal presumption is against such change. In the case of Cole v. Lucas, it -was decided that a domicile once acquired remains until a new one is acquired, “facto et animo.” One going to another State for health, pleasure or any temporary purpose, with the intention of returning, has a mere transitory residence, which constitutes no new domicile, "nor an abandonment of the old one. It is not the act of inhabitance which constitutes the domicile, but the fact, coupled with the intention of remaining. In case of doubt, the original domicile is considered to be the true one. 2 An. 916.
    The Oode of Practice provides that citation and petition may be served by being delivered to the defendant in person, or by being left at his domicile. Art. 187.
    The service is made in person, when the citation and petition are delivered to the defendant himself, Art. 188.
    It is made at the domicile, when copies of the citation and petition are left at the usual place of domicile or residence of the defendant, if he be absent, by delivering them to a free person, apparently above the age of fourteen years, living in the house. Art. 189.
    The petition and citation must be served on the defendant in person, or left at his domicile, in the manner provided in the two preceding articles, in all cases, where the defendant is of age, enjoys civil rights, is present in the place, or has there his acknowledged domicile or residence. Article 190.
    The plaintiff’s petition, and the notarial-records annexed, show clearly, as already seen, that the acknowledged residence of the defendant was in New Orleans. He, therefore, should have been- served at that acknowledged residence, as the Oode of Practice requires.
    In the case of Collins v. Walling, 6 An. p. 702, the Court decided the return of the sheriff should, on all occasions, follow substantially the words of the Oode of Practice. The sheriff’s return on the citation, that he “ learned the defendant was out of the State,” without adding he had left the State permanently, is not a substantial compliance with the Oode of Practice, and did not entitle the plaintiff to have a curator ad hoc appointed to represent the defendant. In every case in which a curator ad hoc has been legally appointed, satisfactory evidence 'was produced that the defendant was either a non-resident, or had left the State permanently, without leaving any one to represent him. The judgment, therefore, is a nullity, for the want of proper citation of the defendant.
    Second. The petition of the plaintiff, and one of the acts of mortgage making part of it, show that P. E. Bonford, a resident of New Orleans, was the agent and attorney in fact of the defendant.
    Article 196 of the Oode of Practice, requires that if the person absent has an attorney in fact, whose name appear in the petition, the sheriff shall serve the same on that attorney in fact, in person, or at his domicile. There is no evidence in the record showing that any effort was made by the sheriff to find P. E. Bonford, or that he had left the State permanently, so that he could not be cited. The plaintiff was, therefore, guilty of laches, in not requiring the sheriff to serve the citation upon the attorney in fact.
    In the case of Cooley v. Seymour, 9 L. 276, the sheriff returned that the appellee was out of the State. This ease was not decided on the sheriff’s return, the appellant having furnished proof by' his affidavit, that the appellee resided in Philadelphia. But Judge Martin, in commenting on the sheriff’s return, said: “The affidavit, that the appellee resided in Philadelphia, prevented the objection that might be made to the service of citation, as evidence by the sheriff’s return of the absence of the appellee, which, if occasional only, does not dispense with a citation at his domicile.”
    The appointment of a curator ad hoc to represent the defendant, who, in his absence, had been represented by an attorney in fact, a resident of New Orleans, was not warranted by law, under the circumstances ; and there having been no conieslalio liiis, the judgment is a nullity.
    
    Third. The judgment rendered in this case, if not a nullity, must be restricted in its operations exclusively to the property mortgaged, beyond which it can have no effect, and can possess none of the attributes of a judgment in personam.
    
    In the case of Thayer el al. v. Tudor, 2 An. 1010, the plaintiff, a resident of Boston, instituted suit against the defendant, also a resident of Boston, to secure the amount of two mortgaged notes. A curator ad hoc was appointed to represent the defendant, and a personal judgment rendered against him for the amount of the notes. The Supreme Court decided that a judgment rendered against the defendant can have no effect beyond the property mortgaged. See also the case of George, Curator, etc., v. Le Grand, 3 An. 652.
    In both these cases, there was evidence that the defendants resided permanently out of the State. But in the case now before the Court, there is no such evidence. On the contrary, it is shown that the defendant was a resident of New Orleans, and had an attorney in fact, who was also a resident of New Orleans ; and the return of the sheriff, that he learned that the defendant was out of the State, is not proof that he had left the State permanently, is altogether consistent with the fact of his temporary absence, and did not entitle the plaintiff to have a curator ad hoc appointed to represent him.1
   Taliaeebro, J.

In November, 1863, the plaintiff filed this suit against the defendant, alleging a large amount of indebtedness by him to the plaintiff, as owner and holder of five promissory notes, secured by mortgage on a house and lot in the city of New Orleans. The plaintiff had judgment in his favor for the amount claimed, with recognition of the lien and privilege on the mortgage property described in the petition, and copies of the mortgages adduced in evidence. Judgment was rendered on the 8th of December, 1863. On the 15th July, 1865, the defendant obtained an order of appeal. He urges as irregularities in the proceedings, that having his domicile in Now Orleans, he was entitled to personal citation; that although absent at the time, that absence was only temporary, and that he was not an absentee of that hind, which, in legal contemplation, a creditor is authorized to proceed against by causing a curator ad hoc to be appointed. He further contends, that he had an agent in New Orleans, whose name appeared in the petition, and that no copy of petition or of citation was served on the agent.

The plaintiff proceeded via ordinaria. A citation was issued, and the sheriff made return, “ that after diligent search and enquiry made, Samuel McOutcheon Montgomery could not be found, and I learned that he was out of the State.’*

The plaintiff then, by supplemental petition, prayed for and obtained the appointment of a curator ad hoc to represent the defendant, and obtained against him so represented, the judgment complained against.

The facts appear to be that Montgomery, the defendant, left New Orleans in 1861, or at least that he was absent in January, 1862, and there is nothing making it probable that he returned before the summer of 1865.'

He was absent with his wife in the State of Virginia, during the greater part of this time. We find no act of procuration in the record from the defendant to P. E. Bonford, who acted in the capacity of agent or attorney in fact for defendant and wife, in the execution of the second mortgage to the plaintiff in January, 1862. Bonford was a Judge of the Supreme Court of the State at or soon after that time, under the appointment of Henry W. Allen, acting as Governor under Confederate rule. The probability is, that he was absent from New Orleans after the capture of the city in April, 1862, by the Federal forces.

The act of mortgage executed by him in January, 1862, recites that Bonford was the “ agent and attorney in fact of Montgomery.” We are not authorized to infer that his powers were sufficient to enable him to defend suits, or to authorize the service of citation upon him. It is sufficiently clear, that at the time the plaintiff’s suit was filed, in 1868, Montgomery had no agent in New Orleans upon whom citation could be served, or against whom, as the representative of Montgomery, legal proceedings could have been carried on.

The only question in this case is, was Montgomery at the time this suit was instituted an absentee in legal contemplation, to whom a curator ad hoc might be appointed, and contradictorily with whom a suit might be prosecuted, and a valid judgment obtained against the absent person.

If the term absentee can only be applied to persons who never had a domicile in the State, or, who having had a domicile in the State, has left it permanently, and lives permanently beyond its limits, it is plain that such a construction of the term would operate injurious and vexatious delays to creditors seeking to enforce claims against their debtors. On the other hand, not every casual and temporary excursion of a resident from the State can convert him into an absentee, and render him liable to be harassed by his creditor, who, to gratify improper feelings, might resort to unnecessary acts to injure him. But, where in a case like the present, the debtor is absent two or three years, has property in the State, but who leaves no housekeeper or person upon whom a citation can be served, has no agent to represent him, it would be leaving him a large margin for the procrastination of payment of his debts to permit him, under such circumstances, to plead that he had a domicile in the State, and argue his right to personal citation, when, for so long a period, he was absent, and had left no person upon whom such citation 'could be served. We think such a perversion of terms inadmissible.

That the appointment of a curator ad hoc, in a case like the present, is clearly within the scope and intendment of our law, there can be no doubt. Neither is it in conflict with the spirit of our jurisprudence. The defendant refers to the case of Cole v. Lucas, 2 An. 950, on the subject of domicile. Chief Justice Eustis, in that case, said : “ A person going to another State for health, for pleasure, or any temporary purpose, with the intention to return, has a mere transitory residence which constitutes no new domicile, nor an abandonment of the old one.” The facts of this case, as well as those of 16 L. 595, and those of 12 L. 603, also quoted by defendant’s counsel, as relates to the circumstances and character of the absence, differ widely from those of the one under consideration. Montgomery left New Orleans, it seems in the year 1861, during the war. It is shown that his family left here also ; that they resided in Virginia ; there is no evidence showing an intention to return. He was engaged in war; he might not survive the perils of war. The city of his former domicile was in possession of the United States military forces. He might not desire to return. Taking the whole range of circumstances attending his absence, we think the case very different from that of a person absent a short time for health, pleasure or some temporary purpose, with the known intention to return.

If the defendant had a-domicile in and resided in the State, he had no right to an appeal, for the time had elapsed within which he was entitled to appeal.

How he could be an absentee to entitle him to two years to take an appeal, and at the same time claim to be personally cited, seems to present some incongruity.

The case of Mr. Livingston, 6 N. S. 15, referred to by plaintiff’s counsel, shows that the appointment of a curator ad hoc might be made to represent a person absent temporarily on public business, when he had' left no agent upon whom process could be served.

In 12 L. page 604, it was laid down that “previous to the promulgation of the Louisiana Code and the Code of Practice, the appointment of a curator ad hoc to an absentee was not authorized by law. But our present Codes seem to have provided for all cases in which absent persons may be interested, or in which rights are to be exercised against them, whether domiciliated in or out of the State. ” This seems to have been the practice heretofore generally adopted.

The ease of Dupuy v. Hunt, in 2d Annual, made no innovation upon this practice. It simply settled that the absentee must have property in 'the State upon which the action of the Courts could fake effect, and that judgments rendered against absentees had no effect beyond the property proceeded against.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts. 14 L. 447. 15 L. 81. 2 An. 634. 6 Rob. 189. 13 An. 505. 18 An. 145.  