
    ANTONIO GRECO VS MAMIE CHRISTINE, Appellant.
    No. 7656.
    December 22d, 1919.
   CKAPL3S F. CLAI30RN3, JUDG3

Plaintiff alleged that he had. leased to the defendant, a resident of the City of New Orleans,the property No. 316 frank-lin Street in the City of New Orleans; and that there was due to him for rent $821 with interest -nd attorney's fees; that he feared that the defendant would remove the contents of the leased premises; he therefore craved for a provisional seizure --nd for judgment for $321 with interest and "ttorney's fees. An order for a provisional seizure issued -s prayed for, and the sheriff seized the furniture contained in the leased p’-e; ises. The defendant released the seizure, furnishing a bond for the suq of Three Hundred Dollars with Jillie V. Piazza as surety.^Jjl»nvas cited personally, and filed an answer on November 8th, 1917. On January 10th, 1919, the plaintiff represented that after joining issue the defendant died in New Orleans in July 1918,' that her succession had never beer, opened/ that she left no heirs present or represented, and that it was necessary to appoint an attorney st law contradictorily -:ith whom the proceedings herein might be carried on. Without any proof of the allegations the Court appointed 1,'eysr S. Dreyfcusnto represent the Succession and legal representatives of the deceased^ 1'ar.ie Christine, Jo'’endrrt".

The case was regularly posted rd fired for trial rnd judgment rendered for plaintiff on Torch 11th, 1519. On the sr.:-gestión of the attorney for defendant that his client,! d.iie, Christir.e^had died in the City of Hew Or locus since July 18th, 1918, the Court ¿-ranted a new trial, - and fined the case for trial for April 3rd, 1915. On what day the counsel for plaintiff and the attorney appointed by the Court to represent the Succession were present, and the caso was tried end submitted,. On April 9th, 19’19 ~ulj. cut was rendered" in favor of the ■ Jr iy>t i "f Antonio Greco, and rgainut the defer,lent, 1 ride Kristine, in the full 3um of Sight Hundred, rnd Twenty-one Dollars" with interest and attorney's fees.

On Anril 17th. the plaintiff took the follo-ln;; ¡ule against the surety:

“On motion of Antonio Greco, plaintiff herein, and on surest in... to the Court x x x that during: th.e tendency of this suit the nronerty seized was delivered to defendant upon h-r furnishing : forthcoming bond -iti one Víillie ’r. Piazza, feme sole, as surety; that said ",'ill:e ¶. ’’iazze should he ordered to return the nronerty seised in this case to the custody of the “tariff, and in default of h.f'r so do in 7 that úvd ¡.Tint, shoul". be rendered in favor of nlaintiff and a.Ta.ir.'if sale fillie 7. ’’iazza for the sa:.e amount for which nlaintiff recovered ;ud.g-r.ent; It is ordered by ;,he Court th t 7il ? ie V. Piazza, fen..e sole, a resident of this City, do within twenty-four Hours of the service of this rule, deliver to the Civil Sheriff the nronerty provisionally seized herein and released under the forthco. ihg bond, ar.d in default of her so doing, that said Víillie V. Piazza, show cause on Friday, April ?.útl„ 191$ at 11 A. i... why ;:ud.r.eñt should not be rendered in favor of ole intiff and a -'inst said 'villie 7. Piazza in the saw.® .amount for which nlaintiff recovered ■'u'vorrt herein a. -rinst tie defendant, to-’-'it: the suk of ’’,i jht Hundred and Twenty-one Pollers, ($C°.1.CC) with le :al interest the-eon from duly 15th, 1917 an.1, ten per cent at orney's fees on said principal -nd interest, all costs of suit and o“ these nr •oeedings".

Víillie ’’r. Pir.zzfi answered the rule in writ in": and aliened:

lo That the proceeding by rule was illegal; this was not pressed on the ar ¿uront of the case.

7o That there wa.c n<- legal iucVpent a r inst d I.o defend-nut .i.ich -./as a,r. essential ecuioite before proceedings could be b ;.®n : . rant the surety, fin. the reason th-t the defendant, iawio C, ristir.e hussel, died in tV is City on duly l';th, 1910, an1 l.at the Jad awnt he-sir. triton c \ in t 1 o; su-t-O' n®nt]v v'ar; ii'nwl, (? ' ' null and void.

The District Court, on the authority of Bussey vs. Nelson, 30 A., 25, overruled defendant's objections and on May 1st,1919 rendered judgment against the surety for the amount prayed for, $821, with interest and attorney's fees.

Prom this juégment the surety, Willie V. Piazza, on May 8th, 1919, took the present appeal.

On June 4th, 1919, with the consent of f/Meyer S.Dreyfous, Curator ad hoc", the-judgment rendered on May 1st (April 9) 1919 was corrected by interlining therein the words "Succession of" before the name of the defendant, so as to make the judgment read against the "Succession of Mamie Christine" instead of against "Mamie Christine".

The defendant complains of two errors in the judgment, viz;

lo That the judgment was rendered against Mamie Christine after her death without making her heirs parties and without opening her succession and making the administrator a party and that such a judgment is a nullity; and

2o That a judgment for $821.00 was rendered against the surety, “Willie Piazza, who had signed a bond for only $300.00.

The Code of Practice contains the following provisions:

Art. 21: "Actions do not abate by the death of one of the parties after answer filed".
Art. 120. "If one against whom there was a cause of action die, leaving one heir only, the suit shall be carried on against such heir as it -'ould have been against the deceased. If the suit had already been brought against the deceased, and he had not answered, it shall not be interrupted, but shall be continued against tl^e heir by a mere citation or notice, served on him to that effect, within the delay for original citations, according as the distance may be from his domicile to the court where the action has oeen brought. If on the contrary, the deceased have two or more heirs, the plaintiff shall proceed personally against each of them for the share of which he inherits, if that share be sufficiently known and ascertained by an inventory or partition; otherwise they can only oe sued, each for a virile portion, that is to say, for an equal part of the debt, dividing it in as many parts as there are heirs. If the 3uit had been already commenced against the deceased, it shall be continued against his several heirs by citing each of them separately as if there was only one, but judgment can only be given personally against each for his hereditary share, or virile portion, as above provided".
Article 361: "If after issue joined either the plain-, tiff or defendant die, it is not necessary to recommence the action; it continues between the surviving party and the heirs of the one deceased, pursuant to the provisions enacted ip the first part of this Code".
C. C., 1113 (1105) provides: "'When any one dies leaving a vacant succession or heirs absent from and not represented in the State, all actions which could have been brought against the deceased, must be commenced or cumulated, and prosecuted before the Judge of the place where the Succession is opened, and brought against the curator appointed by the Judge, as is hereinafter prescribed" .

The facts of the case of Bussy & Co. vs. Nelson, 30 A., 25 differ materially from the facts of the instant case. In the Bussy case the plaintiffs sued Kelson, a resident of Indiana, by attachment lathe Fourth District Court and seized a lot of staves, Kelson answe/ed the suit. He afterwards died in Indiana where his Succession was opened. The plaintiffs then filed a petition in the Second District Court, or tRrnvftat Court, in which they alleged "that they knew of no property or succession of Kelson in this State, and prayed the Court to appoint a suitable person to represent S. C. Kelson, deceased and his heirs, if any he has, and to appear and defend the suit. Whereupon the Second Court made the appointment in these words: Let J. V. Rosier, Bsq. be appointed to represent Samuel C. Kelson deceased and his heira, if any he has, and to defend them in this suit", Rozier excepted that the Second District Court had no authority to make the appointment nor had the Fourth District Court any further jurisdiction to proceed agasint the deceased. The Supreme Court thus states the point at issue: "The question for solution ia, had the Second Court the power to appoint a pinon to repreeent the deceased or his heirs in the suit pending in the Tourtti Court, or should the latter Court have made the appointment"? As to the exception to the jurisdiction of the fourth District Court after the death of Nelson the Supreme Court merely Bald that they had decided in Augustin vs. Avila, 29 A., 837, that a suit pending in one of the Courts of the City of New Orleans did "not abate by the death of one of the parties, nor did the death of a defendant in such suit compel its transfer to the Second (District or Probate) Court, but that it remains within the jurisdiction of the Court where it was instituted, and only awaits the representative of itho Succession of the deceased to be made a party in order to proceed in its trial". As to the authority of the Second District Court to malee the appointment, the Court said, that there was no property of the deceased .in the State nor any Succession to open; that it was therefore not a curator to a succession that was desired, but a curator ad hoc to "a non-resident defendant whose property had been attached and who had appeared and answered and died during the pendency of the suit et his foreign domicile idiere his succession was opened", leaving no succession to open in this State. The Court finally said: "Under the state of facts as alleged, the Pourth Court, which had jurisdiction of the suit at its inception, did not lose it by the death of one. of the defendants, and alone had the authority to appoint a curator to represent the heirs of that defendant in that suit, there being no succession opened or to be opened in this State, and no means being provided to bring the foreign representative of the foreign succession before our Courts. The judgment was therefore rendered contradictorily with one not authorized to represent the parties, and must.be annulled".

No one of the Articles 21, 120 or 361 of the Code of Practice or 1113 of the Civil Code was quoted in the opinion.

If we should follow plaintiff in his argument and pleadings, and in his conclusions of this opinion, the law would then read that upon the death of 4 resident defendant,-ing whether after answer filed, the Judge shall appoint a curator ad hoc to the ^nrrrrim of thr^rrrin^nr tn 1l1n hn1~r~^i~i thrml know-•a- and without naming them, contradictorily with ^^^■judgment shall he rendered against the Succession of the deceased defendant. We are sur« that the law docs not read that way and vie do not interpret the decision in the 30th. A., 25 as containing any such meaning, ^e understand that the Court held in that case that there was and could be no succession of the deceased lelson in this State for the lwo reasons that he did not reside in this State and had left no property here, and that his Succession had been opened in his home in Indiana, and that his heirs, if he had left any, and the representative of his Succession, resided in Indiana, and there was no other means of reaching them except by the appointment of a curator ad hoc as in cases of attachment against foreign defendants^V But the decision does not justify the conclusion that when a defendant, a resident of this State, dies in this State, a plaintiff raayy -- proceed to judgment against the Succession of the defendant^by^ hawing a curator ad hoc appointed to the Succession/and keMHW of the deceased^ In our. opinion there is no warrant in the law for such a practice and no case has been quotéd in which it has been done. As we understand the law, a suit can be continued against a resident defendant who dies after answer filed, only by making parties to the suit the heirs of the deceased defendant or the representative of his Succession by personal or domiciliary service if they reside in the State, or by appointment of a curator ad hoc if they resid-e out of the State» 3

It is elementary that a judgment rendered for or against a dead person is a nullity. 2 A., 484; 8 A., 80; 9 A., 241; 10 A., 778; 23 A., 102; 29 A., 141; 33 A., 1013; 41 A., 885.

In the case of Mc Micken vs. Smith, 5 N.S., 427 (430) the Court said;

"It appears that previous to the decision of the case in the District Court, on the death of one of the defendants being shown, it was ordered, "that Archibald Haraldson be appointed curator ad hoc to represent the interests of the defendant during the pendency of the cu¿te Th<s curator ad hoc is the same person or» whom the appeal tog served. But we do not think the case of the appellant is made oetter by the diSv;losure of this fact. Our Code of Practice requires, th«t if the defendant should die after issue .joined, his heir must he citod. This is vh-»t should hawe b«en dono herc,*nd until it wa3 dona judgment could not have been regularly given in the District Court again ¿it the Succession of the deceased".

In the case of Stith vs. Winbush, 3 La., 442, where the defendant died after judMp'ent had oeen rendered, the Court said:

According to t^sge laws, when one of the parties to a suit dies after issue joined, it continues between the surviving party, and the heirs \»r representatives of the deceased. Cede of Practice 361". 5 La., 526.

In the case of Mc manus vs. West, 18 La., 41 v/nere a curator ad hoc was appointed to a plaintiff who had died after issue joined, the Court said:

"It (plaintiff’s death) however does not justify the appointment of a curator to his heirs. If they were within the State no curator could oe appointed to them x x The appointment oeing irregular, all the posterior procee tngs contradictorily with him are equally so" .

In the Succession of Cunningham, 2 R., 443, it was decided that when the heirs of the deceased, or some of them, were present, no curator could oe appointed to the Succession.

In Chartier vs. Police Jury, 9 A., 42, a curator ad hoc had been appointed to a plaintiff who had died after judgment rendered; the Court said:

"The cases in ^hich curators ad hoc .may ue appointed by Courts to represent parties in suits, are enumerated and specially provided for by law. Vie are not prepared to say that this is one of the cases in which it may be done" .
In Norton vs. Jamison, 23 A., 102 (104) the Court said: "If defendant die after issue joined, his heir should be cited; until this be done judgment cannot be given against the Succession. 5 N.S. 431". 5 R. 508.

The case of Mc Closkey vs Wingfield, 29 A. 141, was a rule, against Bush, surety on an attachment tond to make him pay the judgment. Judgment had been obtained against the defendant; but prior thereto the defendant had. died. The Court Said:

"The question is not merely as to the manner of enforcing judgment against the principal before pursuing the surety. It is as to the existence of judgment against the principal. The death of a partner dissolves the partnership. If this arises after answer filed, suit does not abate, but may be continued by making the heirs or legal representatives of the deceased partner parties to the suit. No valid judgment can be obtained otherwise, as held oy us. This was done in the present case, and is an insuperable obstacle to the pursuit of the surety in the present attitude of the case".

Proceedings to sell the property of a defendant, after his death, without making his heirs or legal representatives parties are illegal. 41 A. 420; 31 A. 371; 22 A. 20; 5 A. 737; 5 R. 508.

The presumption is that a deceased did not die without either ascendants, or descendants or collateral /relations. 5 N.S.-431. The counsel fbr <the appellant stated upon the argument of 1 A the case that the deceased had left heirs in this City. t

We have therefore come to the conclusion that there neither law nor jurisprudence authorizing a plaintiff, upon th death of a defendant, a resident of this State, to cause the pointment of an attorney or curator ad hoc to represent his succession; nor can a curator ad hoc he appointed to represent his heirs unless they are shown to he 'lahsent

The rule against the defendant herein Willie A. Piazza is therefore discharged and the judgment against him reversed and avoided^

December 22d, 1919.

(IN RE; PIAZZA'S APPEAL)

OH F.EHEARIHG.

OPIHIOE.

St. Paul

The facta herein are fully set forth in the former opinion on file. Briefly they are aa follows;

Plaintiff sued and seized for. rent; defendant hondod the seizure, and appellant became auréiy on the forthcoming bond. After issue thuSj (and otherwise) Joined defendant died. Plaintiff by motion (unsworn) then suggested; the death of defendant; that her succession had lot bean opened; that there were no heirs present or represented. And theuaupon the oourt appointed an attorney to represent "the sucoession and legal representatives of the deceased"; contradictorily with whoa the proceedings were carried ti Judgment. The appellant, when called upon to produce the bohded property, denied the validity of the Judgment thus obtained, and thus raised the following issues, to~wlt;

1. Can a curator-ad-hoc, or similar rapres entail'-e, be vrlidly appointed (after issue joined) to the sucoession and hairs of a deceased defendant, where the oourt has under seizure property belonging to the deaeased, and the presumptive heirs are unknown, or absent, or non sul jurist

2. Must negative proof be administered to show that suoh heirs are unknown, or absent; or, will it sufftee merely to suggest the faot, and rest upon the failure of the heirs to present themselves and ••evindioate the property under seizure?

I

The Jurisprudence seams to be fairly well settled, that a plaintiff may, upon the death of a defendant after issue joined, proceed to have a curator-ad-heo. or other representative, appointed to the succession and (presumptive) heirs of the deceased, if the^be unknown, or absent, or non sui juris; but it is not altogether clear (for want of the full facts in each case) whether this right be, or be not, dependent upon the court having some property belonging to the deceased within its grasp, or immediately subject to its process. We presently incline to believe, that (for constitutional reasons) no judgment so rendered can effect persons or property not already reached by the court's process; bat that question does not arise on this appeal.

But where the court has under seizure property of the deceased, or where property immediately subject to tha process is involved (as an immovable), then the jurisprudence is quite blear that such an appointment may be made.

Ball vs Crockett; 9 An 293

Bussy vs Nelson, 30 An 25

Theus vs Kemp, 49 An 1657

Willis vs Ruddock Cypress Co, 108 La 256

Tell vs Senae, 122 La 1039

Abbott vs Pratt, 144 La 742

indeed under such circumstances it is manifest that the court must either make the appointment, or dismiss the proceedings, or have the seized property or its revenues wasted, to the ■benefit of no one and the injury of all. Eenoe this jurisprudence results ex Ipsa necessitate rgj; and is clearly constitutional.

XX.

We have therefore no doubt that under the ciroumstanoes of this case and the allegations of the motion ashing the appointment, towit, that there were "no heirs present or represented", the appointment might validly be made, and our former opinion so recognizes.

In that opinion, however, following Whitney Bank vs Alfred, 13 Orleans App 223 (136 La 230) that, to warrant the appointment, proof must be made of the facts alleged. But we now find that a later jurisprudence holds otherwise; and that suffices merely to suggest the faots {negative in character) that there are no known heirs present or represented, and this suggestion alone warrants the appointment until the heirs themselves appear.

Ihus in Abbott vs Pratt, 144 La 742, it was held that the "mere averment", unsupported by affidavit, that a defendant was absent {i. o, not in the State) sufficed to make a valid appointment, this on rehearing, after the court had just held that such absence (i. e. non-presence) must be affirmatively proved; and in a case to compel acceptance of title, which might perhaps have been set aside by proof that the defendant was in fact not an absentee (i. e. was in the State) when the appointment was made

She court was therefore'-.both C aljhorute- ¿_i’ f j:u.l in its conclusions; for its own former decree (still persisted in hy the author thereof) was before it; and it must, have realized that any future ohange in that Jurisprudence might (vrould) he destructive of the very titüe it was then for;ing upo” » reluctant purchaser.

III.

Cf course appellant should not have heen condemned more than she had bound herself, towit, the amount of the forthcoming bond (i‘300); nor should interest have been allowed ;:ept from the time she breached the condition of the bond, towit, by failing to produce the seized property when demanded of h. •• [April 20th 1919)

Our former-decree is therefore set aside, and it is now ordered that the Judgment appealed from be amended by reducing the amount allowf -i plaintiff in rule to "'breo hundred Dollars ($300), with legal interest from April 20th 1919; and as thug amended the judgment is affirmed; Costs of the rule and proceedings thoreon in the court below to be paid by appellant, and costa of appeal to be paid by plaintiff.

Hew Orleans la, February 9th 1920  