delivered the opinion of the court.
The dismissal of the appeal is prayed for, on a suggestion,, that the appellee, as it appears from the record, is a resident of New-Orleans, and the citation and petition of appeal has-been served on his attorney.
2. That the sheriff’s return does not state the name of the person with whom the copies of the petition and citation were left.
The residence of au appellee may be shown, alhmde, by afli-duvit offered in the Supreme Court, to be in another stale, and service of the process of appeal on his attorney will he good, notwithstanding* i he states in his original petition that “he is-a resident” of the state. In making service of petition and citation of appeal on the attorney of the ap-pellee, the sheriff need not slate the name', age, and condition of the person he left them with at the attorney’s domicil. It is only necessary to return that he left them at his domicil. The sheriff’s return is nut required to- state that copies of citation and petition of appeal' were left at the usual domicil of the appellee* when it is not shown he had severaldomicils- A curator ad hoc must he appointed to minor* or other persons intended to be sued, and who are without a tiv-Btós01orUwhoare ■ absent and not reuresented in the state.*4493. That the return states the cojees were - left at the domicil of the attorney, without stating it to be- his usual domicil. ‘ i
I. The residence of the appellee may be proved aliunde, than by his own statement in the petition. The appellant has filed the affidavit of an indifferent person, stating that the appellee resides in the state of Mississippi. In such a case the service may be well made on his attorney.
II. The article 582 of the Code of Practice,' directs the service of petition and citation of appeal, to be made on the attorney, by delivering him copies, or leaving them at his tcsual domicil', without requiring, as i^ done in petitions and citations in original suits, that the sheriff should state the names of the person, See., to whom he delivers them.
III. /When the sheriff’s return slates, that copies have been left at the domicil of the party, it may be shown that he had two domicils and the copies were riot left at the usual one.' The presumption, however, is, that a man has not several domicils. As it is not alleged in this case, that the attorney had several domicils, it was useless to add,, that c/opies were left at his usual one:
The appeal must, therefore, be sustained.
Our attention is first drawn to a bill of exception taken by the appellants, to the rescission of an order appointing'cura-, tors, ad hoc, to- the minor heirs of Durnij defendants in the suit, which was brought against their, attorneys in fact. It appears to us the court erred. The a-ppointment of a curator ad hoc, was required by the Code of Practice, article 116, which says, “ if the minor, whether under or above the age of puberty, against whom one intends to institute a suit, has no tutor, nor curator ad lites, 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, he absent and not represented in the state.”
The order, appointing a curator ad hoc to the minor heirs of Dunn, must be reinstated.
We mean not to express any opinion on a question presented in this case, but which has not .been raised in *450either court, to wit: whether a suit can be brought against an attorney in fact, especially when his alleged principals are minors ?
time wiTi^bc'ai-lowed for the return of a commission sent to to take evidence! in a court of Probates, sitting . monthly, a con-be'grantedtvith more facility than m a district court which only ally. semi-annu'Qui- attention is next drawn to a bill of exception of the r defendants and appellants, to the refusal of the court to §'rant a continuance, on the ground that they had not used proper diligence in procuring the return of a commission to , , ‘ take testimony.
The commission was sent to New-Orleans, about the 20th February, by a steam-boat, and soon reached the hands of the commissioner. The cause was called for trial on the 26th of March following. It does not appear that more than a month elapsed between the time when the commission was , , . 1. . . tit i received by the commissioner and the day of trial. Although many cases, a month may be sufficient for the execution and transmission of a commission, circumstances may often . . retard its arrival beyond that period. In a court of probates which sits monthly, a continuance ought to be granted with more indulgence and facility, than in a district court which ° v only sits semi-annually.
It appears to us the continuance ought not to have been refused. It is true, there was a peremptory rule for the trial of this case in March. On such a rule the court may be more strict, but is not prevented from granting a continuance if it believes justice will be promoted thereby.
It is, therefore, ordered, adjudged, and decreed, that the judgment of the Court of Probates, be annulled, avoided and reversed, and the cause remanded for a new trial, according to law; the plaintiff and appellee paying the costs of the appeal.