delivered the opinion of the court.
The Plaintiff alleges in his petition, that Madame Mourain, an absentee, being sued in an action of partition, Arnaud Beauvais was appointed by the court, her curator ad hoc\ that the latter employed him (the plaintiff) as attorney and counsellor at law, to represent him in said suit, and to defend the same; that he did accordingly attend to the case, until final judgment was rendered. He further represents, that at the time of the final judgment in the case, the sum of five hundred dollars was allowed to the curator ad hoc, and taxed as a part of the costs to be paid by Madame Mourain. He avers, that his services were worth the full sum of five hundred dollars, and that the curator ad hoc is liable to pay him, and he prays judgment against the defendant for that amount.
A curator ad hoc, appointed by the court to an absentee, may employ counsel to defend the interests of such absentee; who is entitled to a just compensalionfor his services, to be paid by the absentee, whose interest he defended. But a curator ad hoc has no right to obtain from the court talcing cognizance of the original action, a summary and ex parte order on the absentee, to whom he was appointed, to pay a particular sum as compensation for his services, to be taxed as part of the costs. The court cannot grant such order, without hearing the party condemned.The defendant admits that he employed the plaintiff as attorney, and that he was appointed curator ad hoc of the absentee. He admits that the sum of five hundred dollars was allowed.him, as alleged, but he denies that he ever received any part of it, and he submits to the wisdom of the court, whether he has a right,' or is bound to enforce the payment of that sum against Madame Mourain. He further alleges, that the plaintiff did not make the proper defence ; that he ought to have pleaded to the jurisdiction of the Probate Court, in which the action of partition was brought, and which court he avers had no jurisdiction in the premises, and no authority to appoint him curator ad hoc.
The District Court condemned the defendant to pay four hundred dollars, but to be released on his transferring to the plaintiff, within thirty days, all his right and interest in the judgment against Madame Mourain. The'defendant appealed.
It is not pretended that Beauvais was originally liable, personally to pay the plaintiff for his professional services. If he afterwards became so, it must be by reason of some promise on his part, or of some act done by him, by which he was rendered responsible. No promise to pay is shown,.and it only remains to inquire, whether the refusal of Beauvais to transfer to the plaintiff his interest in the judgment against Madame Mourain, or to prosecute an execution, and make the money out of her property, rendered him liable to the plaintiff.
That the defendant had a right as curator ad hoc, under the appointment of the court, to employ counsel, we do not doubt, and that the .attorney is entitled to a just compensation for his services, to be paid by the absentee whose interest he defended, is perhaps equally clear; but it does not appear to us logical, to conclude from these premises," that the curator ad hoc has a right to obtain from the court taking cognizance of the original action, a summary and exparte order on the absent party, to pay a, particular sum as compensation for his services, to be, taxed as a part of the costs, nor that the *89court has a right to make such order, without hearing the party condemned. The absentee is before the court by a curator, for the purpose of defending an action of partition, and for no other purpose. In procuring such a condemnation, the curator ad hoc assumes to represent both parties, and' in substance assents to a judgment in his own favor, against the party whose interest he is appointed to defend. The court assumes to adjudicate upon a cause of action, wholly foreign to the case before it.
In the case of Pontalba vs. Pontalba, this court ruled, that a curator ad hoc, appointed to the absent defendant, was not entitled to be paid a fee, as taxed costs out of the property of the plaintiff, who had' succeeded in his suit. The same doctrine was recognised in the case of Hewet et al. vs. Wilson et al. See 4 Louisiana Reports, 466. 7 Ibid., 70.
The case now before the court, is different from either of those above referred to. In the present case it was the defendant who was condemned to pay the fee of the curator ■ad hoc, as a part of the costs.
It do'es not appear to us, that Beauvais was under any legal obligation to transfer to the plaintiff any interest he might have in the judgment, nor can we perceive how he has become personally liable to the plaintiff, in consequence of his declining to prosecute an execution to enforce it, nor does it well appear, how he could control an execution against his own constituent.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that there be judgment in favor of the defendant, as in case of a non-suit, with costs in both courts.