
    No. 10,192.
    Mrs. Malvina C. Collier, Tutrix, Etc., vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    A motion for security for costs, under section 4 of Act -130 of 1830, is not án appearance which goes to the merits of the suit. It is not a contestation of any point or matter raised by the action as set forth in the petition. It is au ex parte proceeding, a matter of right, which is to relieve the defendant from making any appearance for a contest of any kind imtil his demand has boon satisfied.
    ¿service of a petition and citation addressed to a corporation, is fatally defective and bad, when made on one who is not a legal representative of such corporation, authorized to receive legal process.
    A citation and service thereof are the foundation of the suit. The same cannot be considered as waived unless by a renunciation, or by au appearance putting at issue some matter represented by the petition, the object of which is intended to be detrimental to the proceeding or the action.
    APPEAL from tlie Civil District Court for the Parish of Orleans. liujhtor, J.
    
      Charles Carroll and IFornor di Lee for Plaintiff and Appellant.
    1, The filing, by defendant, of a motion for security for costs, under section 4, of Act No. 13G, of 1880, precludes him from subsequently questioning the validity of the service of citation upon him. Succession of Baumgarden, 35 Ann. 130; Foote vs. New Orleans, 20 Aim. 22; Lee vs. Goodrich, 21 Ann. 278; Collins vs. Briggs, 5 La. 258 ; City vs. Hall, 21 Ann. 438'; City vs. Walker, 23 Ann. 803; Tutorship of Heirs of Byland, 38 Ann. 759; Bartlett vs. Wheeler. 31 Ann. 543.
    2. Personal service of citation upon the president, or in his absence from the City of New Orleans, upon the secretary of defendant, under section 12 of its charter (Act No. 37, of 1887), is not the only mode of briuging it info court. The first clause of the section, did not have the effect of repealing the fourth paragraph of Article 198 of the Code of Practice: hence, the clause and the *paragraj>h must, if possible, be so constructed that both may stand. To hold that the clause, instead of conferring a privilege or exemption, placed defendant in duriori casa, than the other corporations in the State, by adding the secretary to the -list of officers upon whom citation may be served iiersonally, at any place in the • city, still leaving it subject to the opei'ation of the paragraph of the article that x>ro vides for a service upon an agent, or employee, of a corporation, at its office, reconciles the clause and the paragraph, and such is the proper interpretation to be placed thereon. St. Julienvs. R. R. Co., 39 Ann., 10G4.
    :L When a defendant attacks a citation, aud introduces oral evidence to show that the return thereon is not true, the doors are then thrown open to plaintiff for the introduction of evidence. to show the facts of the service, and if they make it olear that it was properly made, the validity of the citation will be maintained, and. if need be, the return amended iti accordance therewith. Mohr. Kanneman & Co. vs. Marks, 39 Aim. 578; Adams vs. Basile, 35 Ann. 101.
    4. A service of citation, upon a civil corporation, by leaving it at its office in the hands of one of its agents or employees, is good, although the president or other officers, ívpon whom personal service is permitted, be not absent therefrom, at the time of such service (C. P. 198). The rules governing the service of citation upon individuals at their domiciles {(’. P. 189), are not applicable to corporations.
    
      
      Leovy & Blair for Defendant and Appellee:
    
      1. The defendant is a corporation created by a special act of the Legislature, which confers It certain privileges and advantages not enjoyed by corporations organized under the general law. Act 37 of 1877.
    2. When the special provisions of defendant’s charter differ from the general provisions of Hie Code of Practice on the same subject matter, it will be presumed that the Legislature intended to relieve the defendant from the operation of the general law and to confer on it the advantage of being governed by the special provisions of its charter. Heirs of Gossin vs. Morgan’s Co., 36 Ann. 186.
    3. Section 12 of defendant’s legislative charter provides that it must be cited into court by service made on its president, or, in his absence, on its secretary. Hence, a service of citation on any other officer or agent is fatal to the citation, especially in Hie absence of proof that service on the president or secretary was impossible by reason of tlieir absence from the city. A fortiori is the citation null and void when it is shown that both the president. and the secretary were present in the city, and that the person upon whom service was made was not even an agent or an employee of the defendant.
    4. The court will presume nothing in aid of a citation. Nothing will cure a dafectivo or null citation except the appearance of defendant and contesting the suit on some other ground than the want of citation. Mo-Mi citen vs. Smith, 5 jN. S. 428; LeBlanc vs. Perroux, 21 Ann. 27.
    5. When the absence of a party is essential to the validity of a citation, the court will presume nothing in respect to his absence. It must be proved by the plaintiff. McMicken vs. Smith, 5 !N. S. 428.
    6. Tho statement in the sheriff's return that the party upon whom service was made was an agent or bore some other relation to tho defendant is no proof of the agency oi* the relation stated. Jacobs et al. vs. Sartorius et al., 3 Aim. 9; Johnson’s Executor vs. Brown, 18 Ann. p. 334.
    7. The filing of a motion for a bond for costs in this case was not a waiver of the defects in the citation.
    
      a. The law gives the right to a boud for costs to any defendant “ in any cause or proceeding” in which costs may bo incurred. Acts of 1880, p. 190.
    
      I). When, by tlie institution of this suit, and the attempted citation of defendant, it became necessary or proper for defendant to come into court to have the validity of the citation settled, there arose a “cause or proceeding” in which costs had to be incurred. To deny defendant the right to security for costs would he to create an exception to the law entirely unauthorized by its terms.
    c. The reservation in the motion that defendant appeared “solely for the purpose of moving for a bond for costs,” shows that the defendant had no intention of waiving anything. The costs expected to he incurred and intended to be secured were the costs of the impending litigation over the validity of tho citation.
    rZ. The appearance of defendant which amounts to a waiver of defects in the citation is his coming into court to contest the suit on some other grounds than want of citation. 5 2ST. S.429; 4 L. 91; 5 L. 258; 9M.497; 10 R. 140; 1 Ann. 323: 3 Ann. 9; 21 Ann. 27.
    
      a. A motion for a bond for costs is not. a contesting of the suit. It is ex parte. It contests nothing which plaintiff asserts. Its object is to avoid the necessity of contesting* anything until the desired security is furnished.
    8. Tho courts require strict compliance with the law in serving citations under penalty oí’ dismissal of the suit. Jacobs et al. vs. Sartorius, 3 Ann. 9; Louis vs. Smith, 24 Ann. 617; 18 Ann. 336; 5 N. S. 428. *
   The opinion of the Court was delivered by

Bermudez, C. J.

The xdaintiff appeals from n judgment dismissing her suit on an exception to tlie mode of service of the citation issued in the case.

It appears that the petition was filed December 29, 1888; that citation was served on the same day, on one Pay, stated in the sheriff’s return, to he the secretary of the defendant company; that on the 7th day of January following the defendant made a motion solely for the purpose of obtaining security for costs, under section 4 of Act 136 of 1880; that on the 12th of January next an exception was filed attacking the correctness and charging the nullity of the sheriffs return, on the ground that the person named therein, as that on whom the service of the citation had been made, was not and never has been the secretary of the company, the consecprence being that the sheriff had no authority to make any service on him.

On the trial, the defendant, as plaintiff in exception, offered to introduce evidence to show the falsity of the return; to the admission of which the plaintiff objected, on the ground that by appearing in the case to ask a bond for costs, the defendant had estopped itself from assailing the validity of the citation and of the service thereof; but the court having overruled the objection, the proof was received, and the plaintiff excepted.

I.

It is merely elementary that a citation and service thereof are the foundation of a suit, and that the same cannot be considered as waived, unless by formal renunciation, or by an appearance putting at issue some matter presented by the petition, the object of which is detrimental to the proceeding, or to the -action. The Code of Practice, Article 206, distinctly provides: Citation being the essential ground of all' civil actions in ordinary proceedings, the neglect of that formality annuls “ radically all proceedings liad, unless the defendant has voluntarily ap- “ peared and answered the demand.” 5 N. S. 429; 4 L. 91; 5 L. 258; 10 E. 140; 1 A. 323; 17 A. 91; 21 A. 27, 438; 230 A. 803; 31 A. 540; 35 A. 130; 38 A. 759.

This is so much so that it has been held that an appearance tor the purpose of setting aside a Writ of arrest, is not such as can he treated as waiving a defective citation. Jacobs vs. Sartorius, 3 A. 9.

In the. present instance, it does not appear that any such appearance was.made l>y the company.

The motion for security for costs is, out of caution, carefully guarded. It distinctly states that the .company appears for the sole purpose of demanding the bond for costs. It is a proceeding necessarily ex parte, a subject, which required no bearing of the plaintiff, as the right of a defendant of requiring' such is-peremptory, and the order of eourt following the motion, is one which, as a matter of course, must he granted, and is one about which the Judge exercises no leg'al discretion, save incidentally as to the amount for which the bond is to he furnished.

It is an appearance which puts at issue none of the matters set forth in the petition, either as to jurisdiction, sufficiency of the cause of action averred, res judicata, prescription, or any other defense, the purpose of which would he to have the cause disposed of, on account of any averment in the petition. Its object is simply to dispense the defendant from making any appearance, or setting up any such defenses, or joining issue on any point, until the requirement for a bond for costs, under the Act of 1880, is complied with.

It is therefore apparent that the mere appearance for the sole purpose of asking the bond for costs, cannot he treated as one, the effect of which was to prevent the defendant in the ease from urging any defense, after the motion for security had heen made and the security asked, furnished and accepted.

The district judge, therefore, decided correctly in overruling the objection to tiie reception of the testimony proposed to impeach the intrinsic correctness of the return.

II.

The evidence adduced, written or oral, conclusively shows, that Mr. Bay, oh whom the service of the petition and citation was made, was not and never had been the secretary of the defendant company.

He says that ho informed the deputy sheriff who made the service, that he was the plionographer and private secretary of Mr. Hutchinson, the president of the defendant company, who was not then in ; that he and the deputy went to the office of the attorneys of the company ; that he handed to one, of them the papers, stating the absence of the president and asking whether he should accept it; that, on being answered no, that lie had no right to take them, lie handed them to the deputy sheriff, telling him t.o serve them on Mr. Hutchinson ; but that the latter would not take them hack ; that he subsequently gave his name to the officer ; that he is positive, he never told the deputy that he was the secretary of the defendant company ; that he never was such secretary ; ape.

The minutes of the hoard of directors of the company of April 5, 1887, offered in evidence, show that, on that day, A. C. Hutchinson was elected president, and John B. Richardson secretary. The latter heard, says that there had heen no change in the officers then elected, between that day and January, 1888.

Tlie deputy sheriff who nítido, the service, testified that Mr. Eay had •stated himself to he. the secretary.' 'fids officer must necessarily have misunderstood Mr. E;iy, who cannot be presumed to hove 'perjured himself.

it is an important feature in tills ease, which militates victoriously in favor of flic correctness of Mr. Eay’s testimony that lie and the deputy went together to the office of the attorneys of the. company, and that there, he was told that lie liad no right to receive the. pajic-rs, nnd that he returned them to tlie sheriff, who declined receiving them.

'Pile information was then and thus brought home clearly to the. officer of the court, in unmistakable language, that Eay was not the proper person oil whom a legal service could be made.

The fact being clearly established that the. service was made on one who had no capacity whatever to represent tlie defendant company, it would serve no useful purpose to follow counsel in the dissertation in which-they have indulged touching the interpretation to be put upon Article 198 (!. J’., and section 12 of the Act of Incorporation of the company, which bears No. 37 of 1877. Tt is enough that the service was made neither under the. provisions of the one nor of those, of the latter, to say that the legal requirement was not observed.

Considering, therefore, that the service of the petition and citation was fatally defective and bad, the exception was properly sustained.

Judgment affirmed.  