Henry Raquet v. George A. Nixon, 1 Dallam 386

HEMPHILL, Chief Justice.—This was an action of attachment instituted by the appellant against the appellee, in the month of July, 1838. The writ of attachment issued, and was executed on the property of the defendant. The record furnishes no evidence that a citation to the defendant was issued or served in any of the various modes pointed out by law.

The cause was not called before the fall term of the court in 1839, when a motion was made to dismiss the attachment on three grounds, which may, however, be resolved into one, viz., “that the petition and affidavit were not sufficient in law to obtain the writ.” The motion being overruled, the cause was set for trial next day. No answer, or pleading to the merits, appears from the record to have been filed by the defendant. On the next day the defendant moved to dismiss the cause for want of service of a citation, and the said motion having been duly considered was granted by the court.

The plaintiff appealed and filed his bill of exceptions. The questions which naturally arise here are whether citation to the person was required by law; and if so, whether the necessity thereof was not waived by the acts of the defendant as they are stated in the record. At the institution of this suit the laws of Louisiana in relation to attachments were in force in this Republic, and by them it was regulated and must be decided.

From an examination of those laws, it appears that in suits in attachment a citation to the person is necessary, and indeed seems to be the basis on which the other proceedings in the case are supported. By

article 251 of the Code of Practice a citation is directed to issue to the defendant to answer the petition as in ordinary cases. By

article 253, the sheriff must serve such citation, first, on the person of the defendant, or at his domicile if he has one in the place, or if he be about to leave the State; second, at the place where the defendant has resided last, if he had a domicile in the place, and conceal himself to avoid being cited. By

article 254, if the defendant has no known place of residence, conceal his person, be absent, or reside out of the State, the sheriff is directed to serve the attachment and citation by affixing copies thereof on the door of the parish church or of the courtroom, etc. It seems, then, that a citation is required, and a mode is pointed out for the service thereof in every possible contingency in which the writ of attachment could be obtained. The action in fact is one of mixed character—in personam as well as in rem.

By the course of the decisions in Louisiana, where the citation is served in any of the modes pointed out by the code—other than that of publication— the suit is regarded as in personam, the attachment being a mere incidental proceeding to secure the rights of the plaintiff. Where the party is cited by publication the suit is considered as in rem, rather than in personam. But whatever distinctions of this character may be drawn, they do not affect the process of citation, for in all cases of attachment the injunction of the law is positive that citation shall issue and be served.

The decisions of the courts have been uniform, that the want of a citation, in the mode prescribed by law, is a fatal objection to the proceedings in attachment—that without it, they are illegal, and the judgment itself in favor of the plaintiff an absolute nullity. 11 M. R., 276; 2 N. S., 52. But the requisite of citation is the privilege of the defendant, which he may waive in express terms, or his acts may imply a waiver thereof. In McMikin v. Smith, 5 N. S., p. 429, it is laid down that the court will presume nothing in relation to ⅝ party’s being cited.

Constructive and even actual notice of a suit will not do, unless given in the manner prescribed by law; but the defect of the want of a citation will be cured by appearance and pleading to the merits. Was the motion, then, of the defendant to dissolve the attachment on account of the insufficiency of the affidavit and petition, such a plea to the merits as cured the want of citation? It does not so appear to this court. A motion to dissolve an attachment is in the nature of a plea in abatement.

From its nature it requires to be pleaded in limine litis, or before issue is joined on the merits, and therefore repels the idea that in itself it constitutes a pleading to the merits of the case. There is nothing, then, in a motion of that character which would preclude the defendant from having the attachment dismissed for the want of a citation. He has waived no right. His attempt in fact was to show that the plaintiff violated the rights, guaranteed to him by the laws, by illegal proceedings in obtaining the attachment.

Nor is there other matter in the record sufficient to justify the presumption that a plea to the merits was filed. It states, indeed, that after the motion to dissolve the attachment was overruled, the case was set for trial the next day.

Had the trial proceeded, and judgment been rendered, this court might have presumed that such pleadings were entered as would justify the rendition of the judgment; but in the absence of the actual entry of an issue on the merits, and where the judge below entertained a motion which would have been precluded by such an issue, we are bound to believe that there was nothing in the pleadings which would prohibit the court below from entertaining the motion. We are therefore of opinion that the court did not err in dismissing the cause for the want of a service of citation.

"Under laws where the suit in attachment is of the mixed character before described, the service of a citation in some of the modes pointed out by the law is a right indispensable to the security of the defendant. Proceedings in attachment, even when the rights of the debtor as secured by the law are held sacred, are oppressive. The property of the defendant is seized before the rights of the parties are adjudicated, and these are decided generally in the absence of the defendant. While the law derogates from the rights of one party, it confers privileges on the other.

The creditor can not complain, that a law of that character should be strictly construed, and that if he attempt to avail himself of its benefits, he should be compelled to comply with all those formalities which it has deemed essential to the security of the debtor. It is ordered, adjudged and decreed that the appeal be dismissed, and that the appellee recover his costs of the appellant in this court on this behalf expended. Dismissed.