
    SEYMOUR vs. COOLEY.
    Eastmist Dist.
    
      January, 1836.
    APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE OF THE SECOND PRESIDING.
    The oath of the son, as the agent of the plaintiff, is sufficient to obtain an order of court appointing a curator, ad hoc, to the defendant, in a case where suit is pending.
    A curator, ad Aoc, is to be appointed to an absentee in a suit which is ihstituted and pending. The citation, in such a case, must be served on. the curator ad hoc, against whom, contradictorily, the proceedings must be carried on to final judgment.
    The 57th article of the Louisiana Code, expressly requires that a suit be first instituted and pending, before the appointment of a curator ad hoc is to be made.
    The agent who represents his principal in a suit, must have authority to do so, so as to allow all legal proceedings to be carried on contradictorily with him, in order to bind the principal.
    The general provisions in the Code of Practice, for the appointment of curators by the Probate Courts, do not repeal the particular one requiring all courts to protect the interests of absentees in suits pending before them, by the appointment of a curator ad hoc.
    
    Defects in judicial proceedings, such as want of appearance, judgment by default, or misconduct and neglect of the curator ad hoc, &c. can only be remedied by an appeal, and not by action of nullity.
    This is an action of nullity, to annul and set aside a former judgment of tbe same court. In 1S23, the present plaintiff recovered a tract of land from the present defendant in tbe parish of Point Coupée. In September, 1833, the now defendant, Cooley, filed his petition in the District Court for the parish of Point Coupée, claiming three thousand dollars, as the value of the'improvements he had put on the land from which he had been evicted by the present plaintiff, Seymour; alleging in his petition, that Seymour was an absentee, residing in England, having no known agent in the state, and praying that a curator ad hoc, be appointed to represent and defend him in the suit.
    The affidavit under which the judge appointed the curator ad hoc, was made by the son of the plaintiff in the suit, as his agent, and dated the 12th of September, 1833, four days before filing the petition. The order appointing him, was made on the back of the petition, and before filing it.
    Cooley obtained judgment, contradictorily with the curator, ad hoc, against Seymour, for the sum of two thousand five hundred dollars, which was signed the 21st May, 1834.
    In October, 1834, the present suit was instituted by G. Vance, as agent for Seymour, against the defendant Cooley, to annul his judgment, and for an injunction in the mean time, to restrain him from executing it.
    The petitioner, in this case, alleges he was not legally cited, did not enter appearance, join issue, or had a regular judgment by default taken against him; that Gilbert Yance, a merchant of New-Orleans, was his known agent, and paid the taxes on his lands in Point Coupée, for the years 1831-2-3, which agency was well known to the sheriff of Point Coupée and other nqtable persons in said parish, and that said agent should have been cited.
    He further alleges that he resides in England, and that time was not allowed from the filing of the petition and answer, and putting the cause at issue, to notify him through his agent, or curator ad hoc. The petition was filed the 16th September, 1833, the answer on the 19th November following, and the trial and judgment rendered on the minutes on the ■25th of the same month. He prays for the annulment of the judgment, &c.
    The defendant excepted to the plaintiffs right of action, and that there was no cause of nullity or grounds for an injunction, shown on the face of the papers. In his answer he pleadéd the general denial, and that the plaintiff was an absentee,' without a legal agent in the state to represent him; that the curator ad hoc, was properly appointed to represent him, who was duly cited and contested the case until judgment rendered.
    Upon these issues, the parties went to trial.
    Gilbert Yance, a witness for the plaintiff, says, he was since the month of June, 1830, and still is, the,agent of Mr. Seymour, and has paid the taxes on his lands in Point Coupee for the years 1830-1-2 and ’3. That he was not cited in the suit of Cooley against Seymour, and knew nothing of it, either from the curator ad hoc, or any other person, until judgment was rendered. The treasurer’s receipts for the taxes paid by Yance, were also produced. , ’ .
    The sheriff of the parish stated, that if he had been asked, in the case of Cooley vs. Seymour, or- “if he had been called upon 
      
      in that case to say who was the agent of Seymour, he would have said he believed Vance to be the agent.”
    
    Other residents of the parish testified to their belief, that Vance was the agent of Seymour, when the suit of Cooley against Seymour was instituted.
    The district judge who tried the cause, remarked that the testimony of the witnesses adduced by the plaintiff in support of his allegations, was vague and unsatisfactory, and failed to make out any one of them. He attempts to show the appointment of the curator ad hoc, was irregular and illegal, on the ground that he had a known agent in the state. The article, 57 of the Louisiana Code, and 116 of the Code-of Practice, provide for the appointment of a curator ad hoc, by the judge before whom the suit is brought, when the proof is insufficient to show the defendant had any known agent in the state.
    Judgment was rendered in favor of the defendant. The plaintiff appealed.
    
      Mitchell, for the plaintiff,
    contended that the appointment of a curator ad hoc, was not properly made in this case, in the manner pointed out by law.
    2. It should have been shown to the judge, that Seymour was an absentee and had no known agent in the state, before he appointed a curator ad hoc; and also, that no curator for the administration of his property was appointed. Louisiana Code, article 57.
    
    3. This should have been shown by the return of the .sheriff, from which it would appear Seymour was an absentee. 6 Martin, N. S. 15.1
    4. The appointment of the curator ad hoc, was illegally made on the oath of T. J. Cooley, the son of the plaintiff, who alone declared'that Seymour was an absentee, in which case a curator was to be appointed.
    5. The order of the judge making the appointment, is illegal, being without date, written on the back of the petition before it was filed. -If made before suit was instituted, it. was too soon; because a curator ad hoc, to an absentee who [las n0 fcnown' agent, must be made by the judge before whom suit is pending. Suit must first be instituted and pending. Louisiana Code, 57. Code of Practice, 195.
    6. We contend that Seymour had a known agent here when the curator ad hoc, was appointed, to wit, Vance; and that the law authorises such appointment only where there is no known agent in the state. The evidence is full to this point, that there was an agent. Louisiana Code, 57.
    
      Cdoley, for defendant.
    1. The appointment of the curator ad hoc, to defend the suit against Seymour, was properly made. The law expressly requires this appointment when the suit is commenced, as it is then pending. A curator ad hoc must be named to defend, when the defendant is absent and has no known agent in the state, or person appointed to administer his property. Louisiana Code, 57.
    
      2. The very object of the above named provision in the Code, was to enable the creditor to obtain a valid judgment against an absentee, by having a defensor .appointed. An agent whose powers are limited or specific, and who had no authority to defend the absentee in court, could not be legally cited, was no legal obstacle to the appointment of a curator ad hoc; on the contrary, rendered such appointment necessary.
    3. An attorney in fact, with limited or special powers, which do not include that of defending his principal in court, is not such an agent as that referred to. A person, except licensed attorneys, cannot defend another in court, without an express and specific power to that effect. Partidas 3, title 5, laws 10, 14, 15 et seq. 8 Louisiana Reports, 112.
    4. The agent must not only be authorised to defend bis principal in court, but must be known generally and publicly as such. The mere existence of an agent, who was unknown to the court, would not incapacitate it from naming a defensor, a curator ad hoc.
    
    5. In this case, there is no legal proof of the existence of an agent, on the part of the plaintiff; or of his having the powers requisite to defend his principal in court, or that such agent was publicly known.
    6. The only proof, if any, is by the testimony of Yance, the pretended agent. A power of attorney may be given either by public or private áct,, or in writing, even by letter ; but if given verbally, testimonial proof of it can only be admitted conformably to the title of conventional obligations; but there we find no proof of a mandate or manner of proving a power of attorney.
    7. Mr. Vance has no where stated what his powers were, but that he was agent. The plaintiff was bound to show the agent was fully authorised to act in this case. He has not done so ; this action cannot, therefore, be sustained, as the first one was legal.
   Martin, J.,

delivered the opinion of tbe court.

This is an action of nullity, instituted by the plaintiff to annul and set aside a judgment rendered against him, on the alleged ground that he had never been legally cited; and that no appearance or judgment by default, had been previously had or taken in the case. There was a judgment pronounced against him, from which he has appealed to this court.

The suit in which the judgment sought to be annulled was given, was instituted under the 57th article of the Louisiana Code, on the suggestion that the defendant was an absentee, and had no known agent in the state, and that no curator had been appointed to his estate, to represent him as an absent defendant. A curator ad hoc was accordingly appointed by the court in which the suit was pending, contradictorily with whom, the suit was proceeded in until final judgment.

The counsel for the appellant, in this case, has contended in argument, that the judgment ought to have been annulled, because the suggestion on which the court acted, in appointing the curator ad hoc, was not otherwise verified than by the oath of the son of the plaintiff.

2. Because at the time of the appointment of the curator ad hoc, there was no suit pending.

The oath of the son, as the agent of the plaintiff, is sufficient to obtain an order of court appointing a curator ad hoc to the defendant in a case where suit is pending.

A curator ad hoc is to be appointed to^ an absentee, in^ a suit which* is instituted and pending. The citation in sucha case, must be served on the curator ad hoc, against whom, contradictorily, the proceedings must be carried on to final judgment.

The 57lh ai*ti-cle of the Louisiana Code, expressly requires that a suit be first instituted and pending, before the appointment of a curator ,ad hoc is to be made.

'The agent who represents • ‘his principal in a suit, must have authority to do so, so as to allow all legal proceedings to be carried on contradictorily with him, in order to bind the princi-iml.

3. Because the defendant had a known agent in the state at the time.

4. Because the appointment of curators is exclusively vested, by the Code of Practice, in the Courts of Probate.

I. Suggestions on which precautionary measures are obtained at the inception of a suit, such as the arrest of the debtor, the attachment or sequestration of his property and the like, are verified, ordinarily, by the oath of the plaintiff. Where the oath for the appointment of a curator ad hoc, and such 'like conservatory acts, is made by the son of the plaintiff, it cannot be more objectionable than if made by-him who is directly a party in interest.

II.,The Code directs the appointment of the curator ad hoc, if a suit be instituted against an absentee who has no known agent in the state, to be made by the court before which the suit is pending.

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 is the citation 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.

In the case of an attachment in which proceedings commence against the property of the debtor, he not being present, the citation is first served by advertisement affixed on the court house door; and the law provides for an appointment of an attorney to whom the process is also to be delivered.

If there be any ambiguity in the English part of this article of the Louisiana Code, providing for the appointment of a curator ad hoc, the doubts it may create are at once dispelled by a recourse to the French text, which expressly speaks of a suit first instituted and pending,. before the appointment is to be made.

III. The judge presiding at the trial of the cause, expressed his opinion that the 'testimony by which the agency of Vance was attempted to be established, was vague and unsatisfactory. Be that as it may, the nature or character of the agency was not shown to have been such as to authorise him to represent the principal in the suit, and to allow legal proceedings to be carried on under it, contradictorily with him, so as to bind the principal thereby. We agree with the counsel for the appellee, that the agent of which the Louisiana Code speaks, must be an agent of the latter description.

The general provisions in the Code of Practice for the appointment of curators by the Probate Courts, do not repeal the particular one, requiring all courts to protect the interests of absentees in suits pending before them, by the appointment of a curator ad hoc.

Defects in judicial proceedings, such as want of appear-' anee, judgment by default, or misconduct and neglect of the curator ad hoc9 &c. can only be remedied by an appeal, and not by action of nullity*

IV. The general provisions of the Code of Practice for the appointment of a curator by the Court of Probates, does not repeal the particular one which requires all courts to protect the interests of absentees, who may be sued before them, by the appointment of a curator ad hoc.

We conclude that the judge who tried the case in the first instance, did .not err in refusing to annul the judgment attacked in the action of nullity, on the ground of the want of legal citation.

If a defect in the proceedings, , occasioned by the want of an appearance or a judgment by default, entitle the appellant to relief at our hands, he should have sought it by an appeal. The district judge could not reverse his own judgment, on such grounds.

So of the misconduct of the curator ad hoc, in his neglect ’ to ask time to consult tb.e appellant whom he wras appointed to represent and defend; this would not entitle the party complaining to a reversal of the judgment, and have the cause remanded. The remedy, in such a case, could only be sought on an appeal.

It is, therefore, ordered, adjudged and decreed, .that the judgment of the District Court be affirmed, with costs.  