
    William Kræbutler and another v. The President, Directors and Company of the Bank of the United States.
    Orto who resides out of the State may appeal from a judgment rendered against him at anytime within two year's from the day on which final judgment was rendered (C. P. 593); and where plaintiffs allege in their petition and affidavit for an attachment that defendants are non-residents, it is sufficient evidence of Such non-residence.
    Where the attorney appointed to represent absent defendants applies, as such attorney, for an appeal from a judgment against them, alleging in his petition that there is error to their prejudice in the judgment, and praying, on their behalf, for the appeal, and the appeal is allowed to them by the order of the judge, the appeal must be considered as taken by the defendants.
    In an assignment of errors, the error must be plainly and fully stated; and nothing can be assigned as error which depends on the facts of the case, or which might have been cured by legal evidence on the trial.
    In an action on a bill accepted by an agent, the" evidence of witnesses who testify that they had seen the written authority by which defendants empowered the agent to accept bills for them, will he admissible, where the power itself is not in plaintiff’s possession, nor under his control. Where the record contains all the evidence introduced on the tria!, or a statement of facts on which the appellant relies either wholly or in part, the appeal cannot be dismissed for want of a formal assignment of errors. C. P. 897.
    
      Appeal from the Commercial Court of New Orleans., Watts, J.
    
      Peyton and I. W. Smith, for the plaintiffs.
    
      
      T. Slidell, for the appellants. 
      T. Slidell3 for the appellants.
   Garland, J.

This is an action on a bill of exchange for £i5000 sterling, drawn in London, by O. F. Mercer, as the attorney of the Union Bank of Florida, on Samuel Jaudon, agent of the Bank of the United States in said city, and accepted by him as such. The bill was protested for non-payment at maturity, and interest and damages are claimed according to the law of England. The suit was commenced by attachment, and a number of persons cited as garnishees, among whom is Robert Copland, now an appellee in one of the two appeals which have arisen out of this case. See 11 Robinson, 160.

The petition was filed on the 15th of May, 1843, and an attachment was taken out on the same day, and notice of it given to the garnishees. The Sheriff concludes his return on it by saying: “ The defendants residing out of the State, I posted eopies at the door of the church, and at that of the room in which this honorable court is held.” No citation was issued directed to the defendants at all. On the 16th of May, Thomas Slidell, Esq. was appointed by the court to represent the absent defendants as their attorney; and, on the same day, a citation addressed to him as such, was issued, and served by the Sheriff. Mr. Slidell took no exception to the irregularity of, or want of eitation to the defendants; but some months after, filed an answer to the merits, denying in general terms the justice of the demand.

At the trial, the plaintiffs proved that the bill was signed by Mercer, as the attorney in fact of the Union Bank of Florida, which he was reputed to be, in London; and that it was delivered by him to the plaintiffs, to hold as security for the repayment of a much larger sum of money, which they had previously, at the joint request of Mercer and Jaudon, as attorneys as aforesaid, advanced to the Union Bank, under the guaranty of the Bank of the United States. They further proved, that Jaudon accepted the bill as attorney, or agent of the Bank of the United States, and that he “ was the duly authorized agent and attorney of the Bank, and that he acted in that capacity in London, from about the month of November, 1839, down to about the month of November, 1841.” The witness said, that he had ' seen and read the power of attorney granted to Jaudon by the president and directors of the United States Bank, dated August 23, 1839, and it authorized him, among many other things, “to contract and agree generally in behalf of the Bank, and to draw, accept, endorse, and negotiate and deliver all such drafts, checks, bills, bonds, or other securities or evidence of debt, as he, the said Jaudon, might think proper and fit.” Upon this evidence, and proof of protest of the bill, a judgment was, on the 15th of December, 1843, given for the plaintiffs, from which, on the 27th of January, 1845, an appeal was taken by the defendants.

The first question presented to us, is a motion to dismiss the appeal on two- grounds, first, because more than one year had elapsed from the rendition of the judgment before the appeal was taken; and secondly, because the right of appeal can only be exercised by the defendants, and not by their attorney in his capacity as such. In reply to the first ground, it is stated and shown by the record, that the Bank is a non-resident, being a corporation located in another State, and has under art. 593, of the Code of Practice, a right to appeal within two years. This answer to the motion to dismiss, appears to us conclusive. The plaintiffs, in their petition and affidavit, say that the president, directors, and company of the Bank reside out of the State of Louisiana, and, on that ground, claim an attachment against them. They cannot now recall these allegations, and deprive the appellants of their right to appeal.

As to the second ground for dismissal, we are of opinion that it is insufficient. The petition of appeal, it is true, is in the name of .the attorney appointed to represent the Bank; but he alleges, that the error in the judgment is to the prejudice of the defendants, wherefore, he prays, in their behalf, for an appeal, and it is granted to them in the order of the Judge. We do not look so much to the form pursued as to the substance, and no one can hesitate in saying, that the appeal is that of the Bank. The attorney as such, has no such interest known to us, as will authorize him to appeal separately from those he represents. We are, therefore, of opinion, that the appeal ought not to be dismissed.

The appeal was made returnable on Monday, the 10th of February, 1845; but, as a record already in this court was to be used, it was, in fact, filed here on the same day it was granted by the inferior court, to wit, the 27th of January, On the 17th of February, the appellant sfiled as points; 1st, “ The judgment is a nullity, the proceedings anterior thereto being informal and void, and should be so declared.” 2d. If it is not null and void, yet it is against law and evidence, and should be reversed.

On the 24th of February, the counsel representing the absent defendants filed another paper in court, which, on its face, is an answer to the petition of appeal, taken by the plaintiffs from an order or decree of the Commercial Court, authorizing Robert Copland to file certain answers as a garnishee. In this document, the counsel, after denying that there is any error to the prejudice of the plaintiffs in the decrees appealed from, prays that those decrees, so far as adverse to the appellants, may be affirmed. He then proceeds, and asks this court to declare the principal judgment against the defendants a nullity, because, all the proceedings anterior thereto were informal and insufficient in law, whereon to found said judgment, “ and especially for want of citation.” The court is asked to decree various other matters and things, but no other irregularity anterior to the judgment is specifically set forth, other than the want of a citation directed to the defendants by name.

The appeal taken by the defendants, and that taken by the plaintiffs from the decrees in favor of Copland, were argued together in this court; and the counsel has used his points and objections filed in one case, to aid him in defeating the plaintiffs in the other. This practice we do not think is sanctioned by law. The points upon which the defendants intended to rely, should have been stated in each case, in the manner directed, so that the plaintiffs might know how to meet them. The counsel for the defendants says, that this-case, and some others against them, are peculiarly situated, and that he feels bound to resort to the most technical practice to defeat them. This he has a right to do ; but the counsel ‘ on the other side say, that the rule must work both ways; and they also stand on the letter of the law, and say that the defendants cannot have the benefit of any errors of law appearing on the face of the record, as they have not alleged them in writing, within ten days after the record was filed in court.

There is no doubt but the nullity of a judgment can be demanded on the appeal, when the nullity is apparent on the record; (Code of Pract. art. 609 ;) and the want of a citation, when the proceedings are not in rent;, is such an apparent error as will annul the judgment. 3 La. 451. But the Code of Practice, art. 897, directs in what manner the apparent error must be made known. It says, when the appellant does not rely wholly on a statement of facts, an exception to the Judge’s opinion, or a special verdict, to sustain his appeal, but on an error of law appearing on the record, he shall be allowed to allege such error, if in ten days after the record is brought up, he files a written paper stating specially such errors; otherwise his appeal shall be rejected. There are many decisions of this court stating what can be assigned as apparent error, and what cannot j and there are no principles better settled, than that the party complaining must plainly and fully state the errors, and that nothing can be assigned which depends on the facts of the case, nor which could'bave been cured by'legal evidence on the trial. 6 Mart. N. S. 640. 2 La. 225. 6 La. 72. 10 La. 154. 11 La. 92. In the case before us, the errors alleged as apparent are set forth in the most general terms ; they were not filed within the ten days succeeding the filing of the record ; and it is by no means clear that the objections now raised, if they had been made in the court below, might not have been cured by legal testimony. The Sheriff could probably have amended his return, and have shown that the citation was legally posted on the doors of the church and courtroom, and other evidence could probably have been introduced to establish the regularity of the proceedings. We admit, that there was much force in the objections raised by the counsel in argument, and if he had pursued the course indicated by law, it ¡S' possible we should have been compelled to annul the judgment. But a strong case must be made out to entitle a defendant to relief, whose counsel makes no objection to the regularity of the proceedings in the inferior court, but files an answer to the merits, and some sixteen months after a judgment has been rendered, comes into this court, and raises exceptions that could have been examined and tried in the first instance much more satisfactorily.

An absentee against whom an action has been commenced by attachment, must be cited by affixing copies of the attachment and citation on the door of the parish church, or of the room 'in which the court sits, as directed by art. 254, of the Code of Practice. Service of citation on the attorney appointed to represent the absentee, is insufficient. Citation being the basis of every action, (C. P. 206,) and the formalities prescribed by art. 254, of the Code of Practice, being in lieu of it, their omission will be fatal.

Informalities in the citation of an absentee, against whom suit has been commenced by attachment, cannot be waived by any act of the attorney appointed to represent him, as by filing an answer to the merits, without objecting to the citation, &c.; and such informalities may be taken advantage of, for the first time, on appeal.

This suit was commenced by attachment against an absent defendant. The record of appeal comes up with a certificate, declaring that it contains all the proceedings and evidence on which the cause was tried.

Upon the merits, the counsel for the defendants urges, that there is no evidence of authority in Jaudon to accept the bill. We think otherwise. Gridley, a witness for the plaintiffs, says, that he has seen the power of attorney, and that it authorized the agent, Jaudon, to draw, accept, endorse and negotiate bills of exchange and promissory notes. &c., as he might think proper and fit. The testimony of this witness, and that of Huston, the clerk of the plaintiffs, was admitted without objection, and, in the absence of any proof to the contrary, make out the case. If Jaudon exceeded his authority in any respect, it was very easy for the defendants to have proved it. They knew what authority he possessed, and could .no doubt have produced the power of attorney, if its production would have been of any service. It is not in the possession of the plaintiffs, nor under their control, and all they can do is to prove its contents.

It is ordered and decreed, that the judgment be affirmed with costs.

Same Case. — On a Re-heauino;.

Tiie judgment was a nullity for want of citation.

The mode of citing an absent defendant in an attachment case, is by posting at thé door of the church or court room, a citation addressed to him. In the language of this court in Putnam's case, (3 Robinson, 233,) “ it has been repeatedly .held, that the formalities prescribed by article 254, of the Code of Practice, stand in place of citation, and that they form the basis on Which all the subsequent proceedings in the cause must rest: the omission of them must therefore be fatal. Code of Pract. art. 206. 10 Mart. 472. 7 Mar. N. S. 160. 8 Ib. N. S. 351. 8 La. 587. 3 lb. 18.”

But it is declared by the court:

1. That the ground of nullity, should have been assigned as error by a written assignment, filed within ten days after the record was brought up.

2. That 'nothing can be assigned as error, which could have been cured by legal evidence in the court below.

3. That the nullity arising from want of citation, was cured by the attorney appointed for the absent defendant, pleading to the merits, without taking any exception to the want of citation.

X. The court observes: “ There is no doubt but the nullity of a judgment can be demanded on the appeal, when the nullity is apparent on the record ; (Code of Pract. art. 609 ;) and the want of a citation, when the proceedings are not in rem, is such an apparent error as will annul the judgment. 3 La. 451. But the Code of Practice, art. 897, directs in what manner the apparent error must be made known. It says, when the appellant does not rely wholly on a statement of facts, an exception to the Judge’s opinion, or a special verdict to sustain his appeal, but on an error of law appearing on the record, he should be allowed to allege such error, if in ten days after the record is brought up, he files a written paper, stating specially such errors as he alleges,’ otherwise his appeal shall be rejected.” The article is, not as quoted by the court, “when the appellant does not rely wholly on a statement of factsbut, “ when the appellant does not rely wholly, or in part, on a statement of facts.” Defendants did not rely “ wholly1'1 on a statement of facts; but did rely in part” upon it, and are therefore within the exemption, and not bound to assign errors in writing within the ten days. No case can be found of a dismissal for failure to assign errors within the ten days, where the record contained the evidence. In Lacy v. Flu-Jeer, 1 La. 62, the assignment was not filed within the ten days, and the appeal was dismissed; but, says Judge Mathews, “ the record contains no statement of facts.” So in 6 La. 144, in 6 La. 157, and in 1 Rob. 460, there was no statement of facts.

But when the record does contain a statement of facts, the appellant who also relies on errors apparent is not bound to assign them within the ten days, nor to file them in writing at all, but may present them orally at the hearing. This is distinctly decided in the case of The State v. The Bank of Louisiana, 5 Mart. N. S. 340. The language of the court is : “ On this part of the case, our opinion is with the counsel of the bank. He has not resorted to this assignment of errors, to sustain his appeal; he had a statement of facts to rely on in the documents, and testimony that came up with the record. He is therefore, at liberty at .any time, even without a formal assignment, to draw our attention to any apparent error.”

II. The second ground upon which the court has refused relief, is, that nothing can be assigned as error which could have been cured by legal evidence in the court below.

This principle is correct, but is inapplicable to the present case.

In every case, we believe, in which that rule has been enforced, it will be found, that the record contained no statement of the evidence upon which the judgment was rendered.

In the present case, every tittle of evidence adduced in the court' below is in the record. How then can it be said, that the apparent nullity proceeding from want of citation, may have been cured below by evidence there adduced 1 To suppose so, is to suppose the record to be false ; it is to suppose, not merely something not found in the record, but something positively inconsistent with it. The reason of the rule is this ; when the appellant has not spread the evidence before the court, and the point alleged as error was susceptible of being covered and cured by evidence, the appellate court will suppose in favor of the judgment of th& inferior Judge, that such evidence was actually adduced before him.

III. The third ground assumed by the court is, that the nullity arising from the want of citation, was cured by the attorney appointed by the absent defendant, pleading to the merits without taking any exception to the want of citation.

If, in an ordinary case, a defendant appearing in person, or by counsel retained by him, should file a plea to the merits, we are quite willing to concede that it would be a waiver of an informality in the citation, or of its utter absence. But an attorney appointed to represent an absentee, could not directly nor by express agreement waive citation.

In the case of Edmonson, IB La. 283, the attorney appointed to represent an absent defendant, entered into an agreement to waive the authentication of the official capacity of the officer to whom a commission was addressed. This court rejected the evidence so adduced, although admitted by the court below, declaring the attorney appointed incompetent to make such an agreement.

In Collins v. Pease, 17 La. 117, this court reiterates the doctrine. “ We are of opinion that a person appointed by a court to defend the rights of absentees in a suit against them, ought not to be permitted to surrender any lawful means of defence on their part, to the injury of those whom he represents.”

But the case of Stockton et al. v. Hasluc/c et al., (10 Mart. 474,) is conclusive. In this case, Porter, J., says: “ But when the record is looked into, we are met by the difficulty, that the defendant has not been cited as the law directs. The acts of the Legislature on this subject, require notice of the proceedings to be put up at certain places, and left at the last place of abode of the defendant. This stands in place of citation, and the want of it is fatal. Curia Phillip, p. 1, Sec. 12; Citation N. 1, 2. The statute must be construed strictly, as every law should he, that derogates so much from the general principles of our jurisprudence, and decides on the rights of those who are absent. It is a privilege to allow a creditor to pursue his debtor in this way, and he cannot complain if he is required to follow exactly the formalities which the act prescribes; and above all he cannot be permitted to neglect that which the law has substituted for a citation, and is, consequently, the basis on which all the subsequent proceedings in the cause must rest*

It has occurred to live court, as a question worthy of examination, whether this objection was not removed / the attorney appointed hy the court having plead to the merits. But I am of opinion, that the want of notice is not cured by this omission ; the party alone could waive the defect?

And Mathews, J.: “I am clearly of opinion that the plaintiffs have not presented to the court a case in which an order of se-* questration ought to have issued, and that the error in granting such order is not cured hy the neglect of the attorney appointed hy the court to move for its reversal. There is nothing in the proceedings which can legally supply the place of notice to the defendants, hy the ordinary mode of serving citation, and consequently they have never been properly brought in to answer, and cannot he hound hy the acts of a person assuming the functions of their attorney by an illegal order of the courts They have been condemned without having been heard, and however equitable the judgment may be in the present case, it is illegal and ought to be annulled.”

Peyton and 1. W. Smith, contra:

Simon,- J.

The grounds upon which we have deemed it advisable to grant a re-hearing in this cause, are two-fold. The appellants’ counsel has contended, that we hate first, in deciding that the ground of nullity by him relied on against the judgment appealed from, should have been assigned as error by a written assignment, filed within ten days after the record was brought up ; and secondly, in intimating that the nullity arising from want of citation, (if such be the fact,) was cured by the attorney appointed for the absent defendant pleading to the merits, without taking any exception to the want of citation.

I. On a further consideration of this point, we have been prompted to recognize, that our first impression was incorrect with regard to the non-existence of a statement of facts. This arose from the incomplete certificate of the clerk, who only certifies, that the transcript contains “ all the proceedings and all the documents filed in the cause:” but the certificate of the Judge, who declares, that “ the record contains all the evidence adduced by the parties on the trial of the cause.” is a sufficient statement of facts ; and we are aware that, under art. 897 of the Code of Practice, which says, that “ the appellant who does not rely, wholly or in part on a statement of facts, an exception to the Judge’s opinion, or special verdict to sustain his appeal, but on an error of law appearing on the face of the record, shall he allowed to allege such error, if, within ten days after the record is brought up, he files in the Supreme Court, a written paper stating specially such errors as he alleges, otherwise his appeal shall be rejected.” There is no necessity for filing a formal or special assignment of errors, when the record contains a statement of facts upon which the appellant relies, either wholly or in part, tío, in the case of The State v. The Bank of Louisiana, (5 Mart. N. S. 340,) this court said: “ The Attorney General cannot complain that the assignment of error was filed too late ; because his adversary was under no obligation of filing it at all, and may have the benefit of it without any, but an oral assignment at the hearing.” In that case, there was a statement of facts, which enabled the court to act on the merits. And so in 1 La. 52; 6 lb. 144, 157; 1 Rob. 460 ; 4 Ib. 147, 380 ; and 5 Ib. 169, the appeals were dismissed, because there were no statements of .facts, and no assignments of errors had been filed, or been filed within the ten days.

We think, therefore, that the appellants in this case were not bound to assign errors, and that they were at liberty to point out the errors of law apparent on the face of the'record, without their having been formally assigned. It is clear, that all the evidence, adduced on the trial being before us, as also all the proceedings had in the cause, it cannot be presumed that anything has been left out; and’ that the party who complains of the judgment appealed from, being dispensed from the necessity of filing an assignment of errors, has a right to demand the nullity of said judgment, when said nullity is apparent on the face of the record itself. Code of Pract. art. 609.

II. We said in our first judgment, that “ no citation issued directed to the defendants at alland this appears on the face of the record from the Sheriff’s return, which recites that it was served on Thomas Slidell, Esq., in person •, and from the return of the same Sheriff on the writ of attachment, which he concluded by saying: “ The defendant residing out of the State, I posted copies (thereof) at the door of the ehurch and at that of the room in which this honorable court is held.” Now, the law requires, in cases of attachment, that the defendant should deserved with a citation by affixing copies of the same, &e., on the door of the parish church of the place, or to that of the room where the -court in whieh the suit is pending is held. Code of Tract, art. 254. Citation is the essential basis of all civil actions; (Code of Pract. art. 206,) and it has been often held, that the formalities prescribed by art. 254 of the Code of Practice, standing in the law of citation, the omission thereof must be fatal. 7 Mart. N. S. 160 ; 9 Ib. N. S. 351; 3 La. 18 ; 8 La. 587; 3 Rob. 233.

To this, however, the appellees’ counsel hds answered, that ho exception was taken below to the want of citation; that the counsel appointed by the court to represent the absent défendants filed an answer to the merits, and permitted the case to go to final judgment without requiring proof of the service of the citation on the defendants in the manner prescribed by law, or making any objection to the Sheriff’s return ; and hence the questions occur: Is it too late for the counsel of the absent defendants to urge this objection on the appeal 1 And, if it be true, that the citation was not issued, or was not served according to law, was the attorney appointed competent to waive it ?

■ On this point, we only expressed a doubt in our former opinion, whether, under the circumstances of the case, the appellants could be entitled to relief; but after a renewed and mature deliberation upon this subject, we have been constrained to come to the conclusion that the defendants were yet entitled to the benefit of the objection, as no one could waive it but themselves, or perhaps their regularly employed counsel authorized to appear for them. A similar question was presented for the solution of this court in the case of Stockton et al. v. Hasluck et al., (10 Mart. 4-74,) and it was then held, that the party was not bound by the neglect of the attorney appointed by the court, to avail himself of the objection, or by his waiver resulting from an answer to the merits. “ It has occurred to the court,” says Judge Porter, “ as a question worthy of examination, whether this ob jection icas removed ; the attorney appointed by the court having pleaded to the merits ; but I am of opinion that the want of notice is not cured by this omission ; the party alone could waive the defect.” In the case of Hill et al. v. Barlow et al. (6 Rob. 148,) we had occasion to investigate a question relative to the effect of an acknowledgment of service of the citation by a curator, ad hoc, appointed by the court, in relation to its interrupting prescription ; and we held, that such curator had no authority to waive the service of the citation, and, by his voluntary act, tó cause a legal interruption o'f the prescription. See also 13 La. 284 ; IT La. 117. And in the case of Hyde et al. v, Crad-dick, (10 Rob. 393.) our language was : “ But the record shows that Craddick has not answered personally, and is only represented by a curator, ad hoc, appointed by the court; and as said curator cannot be permitted to waive any of the legal rights of the party he represents, and above all, as a judgment rendered in the absence of the interested parties, without their having been duly cited, could never have any legal force and effect against them, we feel bound to consider the exception, as if it had been originally and specially pleaded ; for our disregarding it would not give any greater force or validity to the judgment appealed from, if maintained on this ground, for want of a formal and special exception.” So must it be in this cause ; and the exception relied on must have the same effect now as if it had been specially pleaded below, previous to the attorney’s answering to the merits.

With this view of the appellants’ rights, and of the questions presented in their behalf, the judgment appealed from should, perhaps, be cancelled at once, and the suit dismissed; but as it is possible that, no exception having been taken below to the want of citation, the plaintiffs have not thought necessary to show that a regular citation had been posted up, together and at the same time with the writ of attachment according to law, and to call upon the Sheriff to produce it and amend his return, we think they should not be precluded from doing so ; and that justice requires this case should be remanded to the court, a qua, for that purpose only.

It is, therefore, ordered and decreed, that this case be remanded to the-c.ourt, a qua, for the purpose only of giving the appellees an opportunity of proving the existence and regular service of a citation duly issued ; that in case said citation exist and is shown to have been duly served, our first judgment be maintained, the costs of this appeal being borne by the appellees ; but that, in case it turn out that the appellants have not been cited according to law, the judgment appealed from be avoided and reversed, and this suit dismissed with costs in both courts.  