Jacobs v. Kansas City, S. & G. Ry. Co

• Decision Date: 15 December 1913
• Docket Number: 19,628
• Citation: 64 So. 150,134 La. 389
• Parties: JACOBS et al. v. KANSAS CITY, S. & G. RY. CO
• Court: Louisiana Supreme Court

64 So. 150

134 La. 389

JACOBS et al. v. KANSAS CITY, S. & G. RY. CO

No. 19,628

Supreme Court of Louisiana

December 15, 1913

Rehearing Denied January 19, 1914

SYLLABUS

(Syllabus by the Court.)

A waiver of citation by a tutor ad hoc is contrary to law null, and void; and the judgment rendered in such case is an absolute nullity. Code Prac. arts. 116, 195, 964; Psyche v. Paragol, 6 La. 377; Baldwin v. Carleton, 11 ob. 109; Decuir v. Decuir, 105 La. 481, 29 So. 932.

A defendant, or his attorney, only can accept service of petition and waive citation. An appointee of the court as curator or tutor ad hoc cannot. Code Prac. art. 177; Stockton v. Hasluck, 10 Mart. (O. S.) 472; Cormier v. De Valcourt, 33 La.Ann. 1168.

In a suit against a railroad company for possession of property which is actually used for railroad purposes, the plaintiff is entitled to recover the value of the land at the time the railroad went into actual possession of same. Pons v. Y. & M. V. . . Co., 131 La. 313, 338, 59 So. 721.

A purchaser under a judicial sale is in bad faith and is liable for rents and damages if the judgment under which he purchases is absolutely void for want of citation. Walworth v. Stephenson, 24 La.Ann. 251.

Hall & Jack, of Shreveport, for appellants.

Herndon & Herndon and Alexander & Wilkinson, all of Shreveport, for appellee.

John B. Files, of Shreveport, amicus curiae.

LAND, J., takes no part, because he, as district judge, rendered the judgment sought to be annulled.

OPINION

SOMMERVILLE, J.

November 22, 1904, Mrs. Pearl L. Dillon et al. instituted suit in the district court of the parish of Caddo against Ransom E. Jacobs, Jr., and Cora Lee Jacobs, minor heirs of Ransom E. Jacobs, residents of the state of Tennessee, for a partition, by licitation, of certain tracts of land situated in said parish.

The court ordered that J. A. Thigpen be appointed tutor ad hoc for the minor Ransom E. Jacobs, Jr., and Jas. M. Foster, Jr., tutor ad hoc for the minor Cora Lee Jacobs.

On the same day each of them accepted the appointment of tutor ad hoc and took an oath to discharge his duties as such to the best of his knowledge. Civ. Code, art. 313.

After qualifying, the tutors ad hoc signed the following indorsement, to wit:

'I acknowledge service of this petition and waive citation.'

Each tutor ad hoc filed an answer to the petition.

There was judgment ordering a partition and sale of the property described in the petition. Defendant, by mesne conveyances, has become the possessor of the property upon which it has built railroad tracks.

Ransom E. Jacobs, Jr., and Cora Lee Jacobs, having recently attained their majority, now claim the ownership of an undivided one-sixth interest in the property, and ask that they be recognized as the owners thereof, and that defendant be condemned to deliver said property to them, with rents and revenues, or that they have a money judgment for the value thereof.

Defendant answered that it had a good and valid title to the property, that, if there were any irregularities in the sale, they were cured by the prescription of five years; and it further pleaded the prescription of ten years. It also called its vendor, W. F. Dillon, as warrantor, to defend the suit, and asked that, in the event it is condemned, it have judgment against said Dillon in whatever sum may be awarded plaintiffs.

W. F. Dillon, warrantor, excepted on the ground that the judgment in the partition suit under which the sale of the property was made could not be attacked collaterally. This exception was overruled, and warrantor answered, setting up a valid title, and pleading the prescription of one, five, and ten years. Ten years have not elapsed since plaintiffs attained their majority.

There was judgment in favor of defendant, and plaintiffs have appealed. The railroad company has also appealed.

In their petition, the plaintiffs refer to the judgment in the partition suit and declare it an absolute nullity and the sale thereunder as being invalid, for the reason that said judgment was rendered against them without citation and contrary to law.

The record in the case of Pearl A. Dillon et al. v. Minors Ransom E. Jacobs, Jr., and Cora Lee Jacobs, residents of the state of Tennessee, shows that J. A. Thigpen was appointed tutor ad hoc to the minor Ransom E. Jacobs, Jr., and that J. M. Foster, Jr., was appointed tutor ad hoc to the minor, Cora Lee Jacobs, and that they represented said minors in that proceeding. It further shows that they took the necessary oaths; and on the same day that they acknowledged service and waived citation in the following words:

'I acknowledge service of this petition and waive citation. J. A. Thigpen, tutor ad hoc for Ransom E. Jacobs, Jr. J. M. Foster, Jr., tutor ad hoc for Cora Lee Jacobs. Nov. 22/94.'

The above language does not clearly indicate whether the petition was served or not, for that portion which waives citation might indicate that the service of the petition was also waived. The question is, therefore, whether the tutors ad hoc had the authority to waive citation or not.

It is argued by plaintiffs that the tutors ad hoc appointed to represent them were without authority to waive citation, and, there being no citation issued to and served on them in the partition suit, that there was no suit as to them, and that the judgment therein is an absolute nullity. Defendant and his warrantor argue that the tutors ad hoc had the authority to waive citation, and, if not, that their action in waiving citation was a mere irregularity, and that the sale under said judgment is cured of all irregularities by the lapse of five years.

Article 116 of the Code of Practice provides:

'If the minor, against whom one intends to institute a suit, has no tutor, the plaintiff must demand that a curator ad hoc be named to defend the suit. The same course must be pursued if the person intended to be sued be absent and not represented in the state.'

And under the subsequent article (964) the court may 'appoint a tutor * * * ad hoc * * * to defend the minor * * * in the action.' Therefore the proper appellation for such appointee is tutor ad hoc. There is no real difference in the duties of a tutor ad hoc and a curator ad hoc. The responsibilities and about the same rules apply to both. Bienvenu v. F. & C. Ins. Co., 33 La.Ann. 209.

And article 195, C. P. provides that:

'If the minors, the interdicted or absent persons against whom the suit is brought, had no tutor or curator, and the plaintiff has had a special tutor or curator appointed to defend them in the suit, the service must be made on that curator in person, or at his domicile.'

The Code, on the subject under consideration, requires that service of the proceedings must be made on the tutor ad hoc or the curator ad hoc in person, or at his domicile. This notice or service is the citation; and the want of it is fatal. The statute must be construed strictly, as every law should be that derogates so much from the general principles of our jurisprudence and decides upon the rights of those who are incapacitated or absent. It is a privilege to allow a plaintiff to pursue such person 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 proceeding which the law has ordered as to serving the citation, which is to be the basis upon which all the subsequent proceedings in the cause rest.

In the case referred to in the pleadings, the attorneys, who were the tutors ad hoc appointed by the court, pleaded and went to trial on the merits of the cause. But the want of notice or citation is not cured by this action on their part. The defendant, who is sui juris, and domiciled in this state, or his attorney, may alone...