Burge v. Batson

• Decision Date: 04 October 1921
• Docket Number: 23007
• Citation: Burge v. Batson, 149 La. 542, 89 So. 687 (La. 1921)
• Court: Louisiana Supreme Court
• Parties: BURGE v. BATSON

89 So. 687

149 La. 542

BURGE v. BATSON

No. 23007

Supreme Court of Louisiana

October 4, 1921

Appeal from Twenty-Sixth Judicial District Court, Parish of Saint Tammany; Prentiss B. Carter, Judge.

Suit by Matilda Burge against N. Batson and another. Judgment against the named defendant, and he appeals.

Judgment set aside, and judgment ordered in favor of defendant, rejecting plaintiff's demands and dismissing suit at plaintiff's cost.

Benj. M. Miller, of Covington, for appellant.

Lewis L. Morgan, of Covington, for appellee.

OPINION

MONROE C. J.

Statement of the Case.

MONROE, C. J. N. Batson, a resident of Mississippi, brought suit in the district court, by attachment, against the Stewart-Bell Lumber Company, formerly a commercial partnership which, with its members, were domiciled in Mississippi, the property attached being certain timber found within the jurisdiction of the court. Miss Matilda Burge, also a resident of Mississippi, intervened, claiming ownership of the timber. On the trial, it was found that the partnership which had existed between the defendants had been dissolved; that only one of them had been cited; that no curator ad hoc had been appointed to represent the others; and that the timber belonged to the intervener. Thereupon there was judgment in her favor, and the suit was dismissed as to all of the defendants, and plaintiff appealed to the Court of Appeal. In the meanwhile the timber was sold, by consent, and the proceeds were deposited in the registry of the court; and, pending the appeal, Miss Burge brought this suit against Batson and against Salmen, the surety on the attachment bond, for damages alleged to have been sustained by reason ofthe wrongful seizure of her property. Salmen, a resident of the parish, was cited, but as to him the suit was dismissed. A curator ad hoc was named by the court to represent Batson, a nonresident; but no notice of his appointment was given to the attorney so named, and no citation was served, either upon him or his client. Thereafter the Court of Appeal affirmed the judgment appealed to it, save as to the member of the defendant firm who had been cited personally, and had appeared, against whom it rendered judgment as prayed for, and the proceeds of the timber, less certain costs and charges, were paid over to Miss Burge, and later still the district court gave judgment in this suit, in confirmation of default, against Batson, for $ 2,680.90, with interest, and he has appealed.

Opinion.

The judge a quo appears to...