,
FEDBRAI;:REPORTER,
vol. 40.
of tbe'sfate: -and. if so; wh6ther'$Rldcurator ad hoc can waive service of citation btappearillgand filing answer." , decision ofthese the judgments to be entered on. t1l615aid demurrers. ' 1.," Where the petition alleges the defendants are trading under a firm name, 'it appears the transaction was a commercial one, they will be as liable in solido,' a,rrd judgment given accordingly, without aijye*press allegation or prayer'for a judgment in solido." Chapman v. Eo:rh" 12 La. this, pase, plaintiff sued the firm of Early & Amelung. The defenqant Early only was appeared. Judgment in 8oUdo against both defendants was rendered in the lower court, and the same was affirmed in the supreme court. "The evidepce shows that the firm ,sued here is composed of six viduals, one of whom only, to-wit, John Cummings, was served with process of citation. This would have been sufficient, had the firm heen a commeroial one. Code ,Prao. art. 198. McGehee V. McCord, 14 La. 362.'J \ · "While'acoriimercial partnership is in existence 1 service of citation members of tpe,firm is good against all ofthem; but after on one of its dissolution every member intended to be sued and made a party must pe served with citation separately." Gaiennis &'r, 17 La. 42. " " , , together for carrying personal property for hire, in vessel.ll.are commercial partners. and may be cited in, the manner prescribed for the citation of such associations; but it. is only where they are' assooiated together under a title, or as ,a firm, that the service of a the partnership in its social hame, made on one of its membei'(dPly, is Hefferman V. Bt'enho;m, La. Ann. 146.', '" " .. ' , ' 2. "The service of citation .of appeal to be made.in the same manneras is required by law in courts.of ordinary jurisdiction. So the iee on a. commercial firm must be made on eithe.r of the partners in person, or by citation.1l-t their store or counting-house and delivering ittoWeir'clerk or agent." Huntstock V. His Credit()r8,lO La. 488. In this case, service upon a clerk of the firm, not appearilig to have been at the store or'counting-house,w8.s held bad. ,. "The Code of Practice, articltd98, requires citlltion's in suits against a on'one pfthe firm in 6r at their store and counting-house, by delivery 'to their clerk or agent. The return here showl'l the service to have been made at the hO,us6pf one of the partners, and does not state the citation was deliveredAo a clerk or agent of the firm. It was therefore oontrary to law, and could not be the basis Of a judgment. unless the want of it has been waived bjil'ome act of the defendantS." (N. S.) 145. ", .· , "In the of a the citation may be left"with the olerk, at the oounting-houl'le;. ang,: 'We havtl held that servioe on the clerk elsewhere is bad. HuntBtock>v. His Oreditor8, 10 La. 488. In this case, the service was made at Jtheproperplace, to-wit, the domicile of
case
, MITCHELl. &;
RAMMELSBUltG FURNrrURE CO· .,. SAMPSON.
809
the defendant, but not on a proper person, to-wit, one living there." Kendrick's Heirs v. Kendrick, 19 ,La. 36. 3. Previous to the constitution of Louisiana of 1879, there were eral district courts in the parish of Orleans having general jurisdiction in civil matters. By the constitution of 1879, said courts were superseded, and in lieu thereof one civil district court for the parish of Orleans was created. Article 261 of the constitution provides for the transfer of all causes taken or pending in, the supreme <;lourt of the state under the constitution of 1868 to the supre,mecourt and courts of appeal created by the constitution of 1879, and then provides as follows: in all, other courts under the constitution " .AlI.,Il&Uses that may be of 1,868, upon the adoption of this. constitution, alld the organization of the coints by this constitution, shall be transferred to the courts. respect. ively,haYfng jurisdiction thereof under this constitution." The qu.estion here is. almost exactly the same question before the preme court. of the state of in the case of Scherrer v. Caneza, S3 La. Ann. 314, arising under the of 1868, it iEl argued and held as follows: ' "The ,the ,casein whibli,the jUdgment of 1867 wasretidered wa\l: not a ' pending' suit. atid that, althoua:h the record was' ttlgloved, ," aWl the jurfsdicti(m ,whicb tbe court' which rendered the judgment couldhaveexercisl'd to revive ,it, had not the removal taken place. wasnot transferred.to or vested, in tila by which it ,was superseded. This.is'a to make:adlstlnction without a differMere playilpon ence. The object of theframef8, the Constitlltioti of 1868, when they erracted artic)e 151. was to'haye thelegislatnre to provide for the bridging over had to the new courtil. fully and completely· of all .so as to preserve, in their integrlty. all acquired rights, and to avoid all hiatus in the adr,ninistationof justice. by 'continuing in there<;ent the anterior judicial organization. The legislatiJre sO truly realized that purpose that they p'assedtherequiredlaw. taking good care to say that the cases would b'e:pf(}. ceeded with, ina11 respects, as if., no change had been made. Had not such been the object in. view, the consequence would have been that the plaintiff. a jUdgm()};lt credito:r,.wouldhaV'l'lQad no forum to 'Yhich to apply for 'an:.enforcement, or for a renewal, ofh1sl11dgment. and that in the course of time bl)t judgment would have been notwithstanditigany effort on her,patt to ket'p it alive. Altbough the rule be that the judgment to revi VB must be renderl'IlPy court which rendered the judgment sought to be revived; stIll it lies in the dIscretion of the legislature to modify it as public convenience the legislature usE's language. the may reqqirl;' tion t9: revive uecl;lss.afUy, either in' the original court, as lo'ng'as it exists, qr passes tothe couH'sup'etseding it., . We have taken the pains. ,in ,view of the intrinsiC the question, to retrace our steps,,$ndto inquire into, preVious legislative, on similar,subjects, and We hkva alt· certained, to our satillfactloli, that 'in: .Act 4iJof 1845. Which was passl'd h1 fnrtherance of article 148 of the constitution of that year. and which is identiii:ii .with article 151 of the constitution of 186t1andthat. in .Act 229 of ]853, Which was pasl!ed. for 1\ like purpose, after the adoption of the constitution of 1852, the word 'remove' ,was employed ,as a qhan nel.of transmission, and'bl\t tl,le word' transfer', was not at 'ail Alsed. The word 'remove '.has atech'1)iilal meaning', fixed bylegislat!on" jurisprlJdence; and practice, · .It is' synonymous With' ·'trahsfet;· 'poilitibly, more
8,10 lsuseP ullder a conlititutionalrequM"ement that· causes Ilendinlr be removed' fromonejndicilil oI;ganization'to lipotber.and Clear riegaihe !tertns to tl}e it must as meaning that t.hacases decfidM.or. not, apd; the' teeordsembodying them. shall be transoneoourt.to anotbet;artd that the jurisdiction which the former dol'ht'.possessed QverthemsbaWYietlUn the new court, whichshaJl ht. and. power, to. all ,matters .therein in vol ve<h' actually pr. W;Oilpectively, as h,avet>een court h\ld not reqloval oCclirred; The words, · removal of <lauseS in the second of Act 1, apply to aU cases. 'deternimed 1>r' not'j'in WhICh the demand' had not been satisfied, in wbich:80tnething remain;ed ,tolle' done. either to. obtain, to exea ·. The o?ject ... :D." ., pro?u .. al recognltlO. t'l . lesal r.lght, ,nd to whether it has to the payment of of pr?p.erty; or to,the enJoyment of some priVIlege or aflvarltage. It is not possible to conceIve of a in ml'y:-p?t arise and iDterlocutory, To say ,tha't a S'lilt isehde<1;',t\lI"t & clLus!dsnot pending, wh'en the claim is Rtill alive &nd'tinsflt;istled{wl'tetilts purpdel=! has trot been accomplished,;: todonsider. when a record is removed from one court to another, that the:.Jaw'i,ntendsonly tc;>
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9,f.,pap,e.11l. ff.om. a .. . '' .....Custodi.an act\" do vlolen98 ft?IU th,e 'statute, and . 'i¥.y.. t9 . ..' p.' 'l<J... '.dest'.r.Pt"cQmIl.l.ete. ;"8 . . r.19. bts; f.orthe mere .. '. <la."tJ . if.co. . burtf. 61, o. . H.on.,:. O.:fitilPlaUsible., y .. . . .. .. m..·.". A. n . . ·.. e.or been ?!!J/itff.&n(J 0,0. ,vr tA. 117 896; ...' Hendry, 23 l?hf1'111: br.f1 . .961. .,. 4revltlw . in solItary .. : .. . 9'im;q.Yl;ls. t.lu.;l, .. . . ..on .. t . ,l!ower in the . . n!'lf{ It jUdicial . La. Ann.. tpell toititl,ol'sC;i views there .p. .
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oftherwqxc;t,. pending,' a ret9f ' . us· *e,w J.. ., . "..e: ,nd . ,as.j.,.· .. . . l. t hough a . I,;Q. . tlO.n IS e.n.it tng '. as 10. ng as. . ... v. 159. In that ',!oJd, ;toa case, p . . SIV.e:t.j,.,t./J.fl':.,'.8. Of. 'll.e.nd ., nt8.h.a. . . ... . n9.tfUllY s.aty·. 'St. Wg. ¥ad con. lq .. lIll;gl..s l.. at,.on.a .. .. the dockthe past, Impotency ,or .of .tlie qf qr succeeding fl.
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m'oney,whether rendered within tit without the by the liipse of t,en years' ren.dition tlt,at any any }!,l'.}f")1 t}ie, v:ed ,)tt.; it IS.
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»",;tQ.
MITCHELL &: tl'MMEL&BUltG;lfURNlTURECe. V. SAMPSON.
or his representative, ftom the coirit!wliich hinderEld the less the defendant or his representative show good CUUl'l8 why the judg1 mentshould not be .revivedjand, if,such defendant be absent; ,and not represented, the court Ult\y, appoint a, curator ad hoc to represent :him in the proceedings. upon which curator ad hoc the citation shall be served." Article 8547, Rev. Civil Code Ln. "Itis how well settled in our jurisprudence that, until regular process is served upon the curator ad hoc, he has no capacity toad ,as such; that he canno,t waive any of the legal' proceedinglHequired for the prot6ctiono£ the rights of the absentee he is called upon' to defend; that his must be strictly limited to those conferred by lawj*'* fit and that; as a'general and fixed rule, a curator ad hoc cannot ted to waive any of the legal rights of the party he is charged w:-repre.sent and defend. StiJcktrm v. Hasluck, 10 Mart. (lAIi:) 474jDu:i"fifoM v. Olark?8 'EState, 8 La. 203;, Edmrmsrm v. Railroad eo"1 13' La. 284; 'G'6lli'll8 v. Peaaej:17 La. 117; ,Hillv. Barlow, 6 Rob. (La.H42llIydev. Oraddick, 10 Rob; (La.) 387; Kramtkr v. Bank, 12 Rob. (La.) Here) therefore, i,Us.,e!ear that the proceedings had in this ,snit from: thElJdayofthe appoihtmentof the curator ad hoc areirtegular aD(Lillegftl;,thairaaid curator, not having been cited, had no right to appearrfor'thea:bilentee8;; not waiye, the production of the lega.},ertdence, upon :which the plaintifl"sclaim. is based; that, he could not consenHt> the' rendering against said. absenteesfcir. the amount claimed', nll)l'any, part thereof.; and that an,eaid proceedirigs, and the judgment a.p'pealed from, are mere nullities." (Jo:rpenf..er v.Beatty, 12 -Rob.. 54Q., ., "Acumt6l' ad hoc caunot diredtlyorindirectly waivaci1iatil}n." . Pic1cnor v.,Cal/inu;n. 28 258. ,,; , ", d "AcUJ'ator ad hoc, appointed to represent an absentee,1i1ay acknowl. edge serlViceofcitation and petition. Such an aCknowledgment iSlllot awaiverioflanyright oftheabsentee."·,Millandan v. BeiLzley,'2 LaliiAnn.. 916., In this case, ,the defendant: being an aourator :ad;/wo was appointed by the judge, to represent him <in· defense' of the suit. TheouratOi· acknowledged service of the petition and citation. The court, citing Hill v. Barlow,.6 ,Rob. (La.) 142; OaJrpenter v.Bea.tty, 12, Rob. (La.) 540; Hyde v. Oraddick, 10 Rob. (La.) 387,"""'says:; "Withregal'd to the questions touching the authority of onrators adkoc deter." mined io. those. cases, we expr\C'ss no opinion. None ofthe. cases cited decide the I point ,presented in this suit; (,The curator, in the present in.. staMe, 80 far as appear& ,from the record; waived none 6Lthe rights of, the party ,whom he was appointed to represent. There was no ,waiver of citation, nor of service. of the. petition; but the written acknowledgment of the curator is ,that both wereiserved upon, bim;Theservice thus acknowledged *" '" .'" brougbt. the into oourt, :and· operated,an·itlterruptioD.ofprescriptiofl.'" , ·.... . ' .,.. .' '' "A curator ad hoc can validly aeknowledge in wrltingservice of petition and. citation addressed to: him 8s;9uch jandsuch, aclmoll'ledgment brings the defendant intocoUt't, and interrupts prescriptidn. ll Bartl.etl Yo-' ,31:'La. Ann. 640. ,.The .aeknowledgment in' this
112
nDJUU.L REPORTER ·. vol. 40.
curator acknowledged that answer filed as .6uratorad lwe, in which he had been duly cited. (a) An inspection of the transcript filed with,and made a part of, the declaration in the instant case shows that the judgment sued on in the first count was rendered in a case in which the petitioner, the Mitchell & Rammelsburg Furniture Company" declared against Sampson Bros., a commetcial firm composed of Chandler C. Sampson and Frank G. Sampson, and the individual members thereof, in 8oUdoj that citation therein was issued, and directed to Sampson Bros.; that, on a supplemental petition filed therein, an order waS made for citation to issue to the individual members of the firm of Sampson Bros.; that thereafter was filed an answer in the following terms: "And into this honorable COUNI (lO,me defendants,. by their undersigned counselj who, for answer to plaintiffs' demand,! deny all· and, singular' the allegations in their petitiorii()ontllined,"-which answer was signed by, counsel; that, in the suit the judgnlent, citation. was issued to Sampson', Bros. , the sheriff ,retu-ming tliereonJbiit after due and diligent inquiry' and search heiwaspnable to ·find Sampson Bro&.l;,defendants; but was credibly outiof..thestateofLouisiana, and 'resided iitthe ,tate of Florida; that thereupQu, on suggesting the citation and return thereof, the court appointed a curator, ad 1wctO represent :the absent fendante; and ,that eight days thereafter the said curator ad hOc filed an answer'acknowledging .the serviCe of petition and citation, and pleading genera1denial. These, proeeeclings seexn. to' be regular and valid. The demurrer to tHe first colint should be overruled· . '(b)' An 'inspection ofthetranscript ,of the judgment on' which the second count is based, shows that, in the original suit, John8d'n Faulkner vUkwip8O'fl, ,Bros., defendants· appeared and filed answer, without any oitation i!!suing; that,in the suit brought thereafter tdrevive the said judgment, 'there is no mention whateyer made ohny citation to the fendante, nor to the curator; ad hoc,' acknowledgment made by the curator ad hoc as to the i service 'of petition and'citation upon him. '{he' proceedings to revivetwere null, for want of citation. The demurrer to!he second count should be sustained. ' ,(c}Aninspectionof the transcript of the judgment upon which the thitdcountis based shows that the suit was brought by Charles mmBastian against'Sampson Brc,>s., alleged to be a commercial firm doingbusiness ,In .the.city 'of New Orleans,and composedio£ Chandler C. Sampson and Frank G.Sampson, and! the individ\lal members of the said;:firrn, in 8olido. Citation was issuedth,ereon; directed to Sampson Bros.i'on which the the following return: ' ';. <;'Oopy' of petition and icitation to be ser'ved' on Sampson Btos. on day of April, 1877. day of July, 1877,'seHeda copy of the within citation and ,· judgment"by default" was taken, and oonfirmed; the fandante making no appearance in the suit to Ule said'judgtnent, 1t does not appear' that any citation ,was issued
UNITED STATES.
or served upon the defendants, although there is a recital, in the motioJ;l and order appointing a curator ad hoc, that, "on showing the court that defendants cannot be found, as sheriff's return shows," etc. Neither does the record show that any citation was issued or served upon the curator ad hoc, nor does it appear that the curator ad hoc acknowledged the issuance and service of any citation. These proceedings were invalid from the beginning, for want of citation. The demurrer to the third count should be sustained.
McKINSTRY 17. UNITED STATES. (Circuit Court, 8. D. Atabama.
21, 1889.)
When the words of a statute prescribing compensation' tor a public oftlcel'.are loo'se.and- obscure, and of two interpretations, they should be construed liberaJiy in favor of the oftlcer, and not striotly in favor of the United States. " ' ,., A;oommissionerof oourt must, in Alabama,.begiq a criminal oas" by ,
.. 'UNITED STATES COMMISSlONBR-FEES-STATEMENTS IN CRIMINAl, CASES.
'such necessary statements ail depositions.
a complaint sustained by sworn statements of the complainalitand his witnelliles; arid, there being no speci,llo fee provided therefor in the fee.bill, he may charge-for
a.SAME-ACRNOWLEDGMENTS TO RJliCOGNIZANOBS.
4..SAME-DoOKJI'f FEliiS.
On Motion for New Trial. See 34 Fed. Rep. 211. The petitioner brought suit in the United States circuit court,S.D. Alabama, against the United States for fees due him from the United States as one of the commissioners of that court. The itemized bill sued ,on to the sum of $1,823.45, llnd is the aggregate ofseYeratac-counts which petitioper had made ,out, and which had been formallyapproved by the court and presented to department, and 'Qponwhiph various sums had been allowed, amounting in the aggregate to $666.46, leaving as. halancedueto the commissioner, sum ,of $1,15$:99. })n the"trialof the case, the petitioner proveq testimony and documentary evidence that he had. t1;lt; s.ervices Jor which he claimed and upon the case was submitted. 'The court rendered an opinion with regard to th'El1aW' oftheml.'8e,'and thereupon referred the matter to a special' master, to report the of the account' in accordance with the opinion of the court. McKfuiaf:riJ v. U. S., 34"F;m. Rep. 211... dThe mastermade report in accordance there,with I findi ng for services rendered by the p.etitionerI ComJ
J.
Esq"of
bar:.·