
    Cazeau v. Lesparre.
    The exception of lis pendens may be waived, and he who fails to use it, should be presumed to have waived it. — 5 L. 115 (I.), and cases there noted. ,
    A citation addressed to and served on the agent of the defendant, when the latter is absent from the State, is sufficient to authorize a valid judgment as to the principal.
    Appeal from the city court of New Orleans.
    This is an action of nullity. The present plaintiff seeks to annul a judgment rendered against him in his absence, on the gronnd that there was another suit pending for the same matter in the parish court; and for the further reason that there was no service of citation on him or his agent.
    The defendant pleaded the general issue. The evidence shows that while the present plaintiff, Cazeau, was absent, a suit was commenced in the city court against him, on his promissory note, and his agent Gustave Weiss was regularly cited by a citation addressed to Mm as agent, &c. and duly served on him by the marshal. There was no defence. Judgment by default was made final against him. The plaintiff, Lesparre, had also taken a nonsuit in the parish court in the mean time.
    
      On this evidence the presiding judge of the city court gave judgment for the defendant, and plaintiff appealed.
    [499] Pepin for the plaintiff and appellant.
    
      Culbertson contra.
   Martin, J.

delivered the opinion of the court.

This is an action of nullity. The plaintiff states that he was sued by the present defendant on a note of hand, in the parish court; and having occasion to leave the State, a new suit was brought in the city court with a view of taking advantage of his absence, and without dismissing the first suit; whereupon judgment was taken by default and afterwards made final; although he had an agent in the State who was not cited; neither was he cited himself personally, nor by leaving a citation at his domicil.

Two grounds of nullity are presented. The first is the institution of a second suit without the dismissal of the first, for the same cause of action. The second ground, is the absence of service of citation on either the principal or his agent. The exception on the score of Us pendens may certainly be waived; and the party who fails to use it, should be presumed to have waived it. The plaintiff admits that on his departure he left an agent here, who was made a defendant in the second suit as representing his principal. This admission recognizes the authority of the agent to defend the suit; consequently to receive service of the citation, since complaint was made that he was not cited. The citation was addressed to “ Gustave "Weiss, as attorney in fact of Henry Oazeau,” and the marshal attests that it was served on him personally. From the admission of the plaintiff, that on his departure ho left an attorney in fact, and that neither himself or said attorney were cited; the inference is strong, that the authority of the attorney, was such, that had service of citation been made on him, it would have been sufficient.

It is therefore ordered, adjudged and decreed, that the judgment of the city court of New Orleans be affirmed, with costs. ,  