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C. C. .........Civil Code.
Code of 1825; otherwise to that of 1870.
Extra Session of the Legislature. ...Opinion Book of the Supreme Court of Louisiana, sitting in
ABANDONMENT. 1. The filing of an opposition to an account is not, in the sense of article ve! |(3485) C. C., an abandonment of a suit instituted in another court. 22 A. 172, Succession Marigny.
2. Property cannoť be considered “ abandoned ” in the sense in which the word is used in the act of Congress (13 Stat. 357, sec. 1) unless the owner was voluntarily absent and engaged either in arms or otherwise in aiding or encouraging the rebellion. 2 Woods, 37, Kimball v. Taylor. See CONFISCATION, No. 33.
3. Failure to appear on the day of the trial is not an abandonment. See JUDGMENT, VIII. No. 1.
4. For abandonment of suit which nullifies interruption of prescription, see PRESCRIPTION, IV. (c), 4).
5. For surrender of debtor's property to his creditors, see BANKRUPTCY; INSOLVENCY.
6. For abandonment, in contracts of insurance, see INSURANCE, III. (j). 7. For abandonment, as a ground of separation from bed and board, or divorce, see MARRIAGE, II. (a).
8. For abandonment of ownership and property expropriated, see New ORLEANS, II. (e), 5), C. 9. For abandonment of property in hypothecary actions, see MORTGAGE, VI. (c), 5). 10. For abandonment of appeals, see APPEAL, I. (a).
I. IN GENERAL,
THE APPOINTMENT AND CITATION OF THEIR CURATOR.
I. IN GENERAL. 1. A person who does not reside in this State, nor has property here, subjects himself to the jurisdiction of our courts by signing a joint obligation made payable here, and a curator may be appointed to represent him, against whom judgment may be rendered contradictorily, although it may have no extra territorial effect. 22 A. 383, Hyde v. Marcy; but see acts 1871. p. 19.
2. Where the father, who is the legal heir, has disappeared for many years, but is presumed to be still alive, no action to annul the will of his ancestor can be maintained by his children. 26 A. 127, Boe v. Filleul.
3. No judgment can be rendered against an absentee, when his property has not been attached. 23 A. 505, Leverich v. Dulin. See II. No. 19.
4. An absentee who owns property within the jurisdiction of the court, may be sued without attachment. The judgment is good as to the property. 29 A. 821, O'Hara v. Booth and Connell; 28 A. 577, Penn v. Evans; 18 A. 209; 19 A. 36; 2 A. 1010; 6 A. 220. II. WHO ARE ABSENTEES; OF THE RIGHT TO PROCEED AGAINST THEM; AND
THE APPOINTMENT AND CITATION OF THEIR CURATOR. 1. In a proceeding by garnishment against an absentee, the citation should be affixed to the Court-house door, in conformity with article 254 C. P., and not merely served on the curator ad hoc; and in such a case, the party seeking to detain the property of the absent debtor in the hands of the garnishee, must give bond, as required by Art. 245 C. P. 15 An. 529, Cox v. Bradley.
2. A person who has a domicile in this State, but who is temporarily absent is not an absentee and cannot be proceeded against by the appointment of a curator. 18 A. 695, Emmerling v. Cucullu.
3. Plaintiffs not being the cause of defendants' appointed agent refusing the procuration, may proceed against the absentee, by the appointment of a curator ad hoc, nor can the party thus declining the procuration, substitute another person in his place. 18 A. 730, Cestia & Seignouret v. Ferrandon & Cessac.
4. One absent from New Orleans, with his family during the war and a resident of another State, during that period, having left no agent here on whom citation could be served, is an absentee. 19 A. 333, Samory v. Montgomery; 6 N. S. 15; 21 A. 205, Lasere v. Rochereau et als; 2 A. 950, Cole v. Lucas.
5. A citation posted in the month of September is sufficient, even if the attachment and appointment of the curator ad hoc were made the previous January. C. P. 254; 21 A. 462, Gilles & Ferguson v. Cuny.
6. The allegation that defendants reside in another State and were absent from Louisiana and not represented herein, is sufficient to authorize the appointment of a curator ad hoc. 21 A. 692, Monition of Hall and opposition of Lawrence.
7. The only effect of calling an absentee in warranty through a curator ad hoc, is to give him, as far as practicable notice of the action. A personal judgment in such a case is not obligatory on the absentee. 15 A. 451, Payett v. Curtis.
8. One occupying furnished apartments, dealing in horses, and usually spending his summers in another State, but paying rent for his rooms during his absence, cannot be considered as an absentee, if there are persons at his dwelling on whom service can be made. 16 A. 391, State ex rel. v. Judge Second District Court.
9. The appearance of the absentee simply for the purpose of setting aside the attachment is not an appearance; a curator ad hoc should be appointed, contradictorily with whom the proceedings are to be carried on. 26 A. 740, Meritz v. Marks.
10. When no property is shown to belong to the absentee, and no suit is pending where he must be made a party, and no citation is served on him, the appointment of an attorney ad hoc is insufficient. 17 A. 237, Fell v. Darden
Co.; 2 A. 562, 1010. 11. A curator ad hoc may be appointed to represent an absent defendant, who has a duly appointed agent present, where plaintiff was not aware that such agent had the power to appear in court. 18 A. 656, Taylor v. Graham.
12. There are three contingencies in which a curator ad hoc may be appointed to an absentee:
1st. If he leave his property without an administrator or agent; 2d. If it be attached at the suit of a creditor;
3d. If the absentee becomes a necessary party to a suit between other persons lawfully in court. 19 A. 36, Field v. Deita; 18 A. 209, Dwight v. Bellocq, Noblom & Co.; 16 A. 390, State ex rel v. Judge Second District Court; 2 A. 562; 3 A. 101, 426; 5 A. 674; 9 A. 34; 22 A, 383; 23 A. 505; 25 A. 306, Rogay v. Juilliard. See supra, 10.
13. Plaintiff need not make oath of the facts necessary for the appointment of a curator ad hoc. 19 A. 80, Frost v. McLeod.
14. The judge should appoint an attorney to represent the absentee; but having appointed a curator ad hoc who is an attorney, these words are mere surplusage. 21 A. 693, Monition of Hall and opposition of Lawrence. See EVIDENCE, II. No. 6.
15. Citation against an absentee is properly addressed to the curator ad hoc; a fortiori, a notice of seizure in executory proceedings may be so addressed: ib. 13 A. 405. See CITATION, I. No. 15; infra, No. 17.
16. An absentee must be cited by posting the citation and attachment at the door of the room where the court in which the suit is pending is held; this omission is a radical defect. 27 A. 80, Wooldridge v. Monteuse, C. P. 254.
17. A citation addressed to “H” who represents defendants under appointment of court as curator ad hoc, is null and not cured even by the answer. 18 A. 481, Galoche v. Grivot and Wife; 12 R. 541; 13 A. 405. See No. 15.
18. Plaintiffs who know that the agent appointed by the absentee refused to act without any fault of theirs, may proceed by the appointment of a curator ad hoc; nor can the designated agent, subsequently substitute another in his place. 18 A. 730, Cestia & Seignouret v. Ferrandon & Cessac.
19. An absentee who owns property in his State may be sued without process of attachment. 28 A. 577, Penn v. Evans; 18 A. 209; 19 A. 36; 2 A. 1010; 6 A. 220; 29 A. 821, O'Hara v. Booth, et al. Per contra, see supra, I. No. 3.
20. If the order appointing a curator ad hoc is invalid, a new order may be obtained. 28 A. 587, Cavaroc v. Fournet, administrator.
21. A citation addressed to the agent is not valid. See CITATION, I. No. 15.
22. The absent mortgagor must be represented by a curator ad hoc. See EXECUTORY PROCESS, III. (a), No. 3.
III. OP THE DUTIES AND POWERS OF THEIR CURATOR; AND HIS FEE. 1. A curator ad hoc cannot waive citation. 28 A. 258, Ticknor v. Calhoun.
See BILLS AND NOTES, V. DONATIONS, V. (b). SUCCESSION, V. MARRIAGE, XIII. (e), 3). SUCCESSION, V.
SUCCESSION, V. OBLIGATIONS, III. (b), 2).
ACCESSION. I. OF THE RIGHT OF ACCESSION TO WHAT IS PRODUCED BY THE THING. II. OF THE RIGHT OF ACCESSION TO WHAT IS UNITED TO, OR INCORPORATED
WITH, THE THING. (a) In general.
(b) Alluvion. I. OF THE RIGHT OF ACCESSION TO WHAT IS PRODUCED BY THE THING.
1. At the dissolution of the community the husband has a right to take from the cattle remaining, a number of heads equal to that brought by him in marriage. C. C. 586, 587; 11 A. 278; 10 R. 46; 25 A. 211, Succession of Waterer. II. OF THE RIGHT OF ACCESSION TO WHAT IS UNITED TO, OR INCORPORATED
WITH, THE THING.
(a) In general. 1. When the constructions have been made by a third person, with his own materials, the owner of the soil has the right to keep them upon reimbursement of the value of the materials and price of workmanship. 23 A. 138, Poché v. Theriot, sheriff, et als.
2. The owner of the soil may refuse to keep the building erected without his permission, and the owner thereof has the right to remove the same, but can claim no compensation. 24 A. 51, Succession of Anglada.
3. One who erected on another's land valuable improvements, is entitled to recover the costs of the materials and price of workmanship, if the owner of the soil keeps the same. 16 A. 244, D'Armand v. Pullin.
4. The improvements put on the property by one who occupies it under a promise of sale, if kept by the owner, must be paid for by the latter. 28 A. 31, J. A. Fernandez v. Bernard Soulié.
5. A building erected by the owner of the land, becomes part of the immovable, the mortgages existing on the land attach to the building which cannot, in execution, be afterwards sold separately from the land. 29 A. 355, New Orleans National Bank, etc., v. Raymond. 6. For crops standing on the land, see EXECUTION, V. (d), 12).
(b) Alluvion. 1. To the riparian proprietors belong the accretion formed by deposits of the stream. 22 A. 613, Barre v. City of New Orleans.
2. In the sale of riparian land, the test as to whether the alluvion or batture. if any, attached to it, is conveyed with the land or not, is this: If at the time of the sale the alluvion attached has attained a sufficient elevation above the waters, to be susceptible of private ownership, the alluvion does not pass, unless so expressed. 22 A. 613, Barre v. City of New Orleans.
3. For a claim against the city for batture, it is necessary to prove that the batture is not required for public use. Ib.
4. Where the purchaser's title recites a front on the street between the property sold and the river, the purchaser does not acquire the accretion formed by the river. 26 A. 310, Winter v. City.
5. The enlargement of the quay in the city of New Orleans by the alluvial formation of the Mississippi river, accrues to the benefit of the city, which being the proprietor of the quay is as much entitled to the benefit of the law of alluvion as any other riparian proprietor, 10 P. 662, New Orleans v. United States.
6. Where the riparian proprietor's estate is cut off from the bank of the river by a public road, the alluvion does not belong to him. 4 Wal. 502, Saulet v. Sheppard.
7. The city of New Orleans may determine to what extent the riparian proprietors may use the batture. See NEW ORLEANS, II. (d), 2), No. 1.
See CRIMINAL LAW, VI. (f). OBLIGATIONS, VIII. (g). JUDGMENT, V. (a), 4). SALE, III. (b), 2), B. MORTGAGE, III. (c). PRIVILEGE. CONSTITUTION, II. (c), 3), c.
Incorporated under the name of Loan and Pledge Association, 1868, p. 280; name changed, 1870, p. 108.
ACCOUNT. 1. For accounts stated, see EVIDENCE, XII. (g). LOAN, III. PLEADING, I. (a), No. 2; VIII. (b), 1). PRESCRIPTION, III. (e), Nos. 7, 8, 9, 10, 11, 12, 13.
2. For accounts to be rendered by curators, executors, syndics, etc., see SưCCESSION, VIII. (f). INSOLVENCY, V., XII., X. MINORS, III. (f). COURTS, II. (d), 5). JUDGMENT, XV. (c). PRESCRIPTION, III. (g), 3); V. (d).
3. For the agent's obligation to account to his principal, see MANDATE, V. (b).
4. For matters of account, see PARTNERSHIP, II. (b). EVIDENCE, XII. (a), (d), (e), (i). INSOLVENCY, V. PRESCRIPTION, IÙ. (d), 2). 5. For interest due on accounts, see INTEREST, No. 1.
6. For accounts liquidated by notes, see BILLS AND NOTES, IV. (a), Nos. 2, 3, 5, 6,
7. For burden of proof in relation to notes given to settle accounts, see BILLS AND NOTES, IV. (b), No. 5.
8. For suit on accounts not mentioning specific dates, see PLEADING, V. (2), 3), E. No. 3.