On Application hoe Reheaeing.
Spencer, J.Our great respect for the plaintiffs counsel, and our belief that the intemperance of his zeal, in the application for rehearing, is due to the sincerity of his convictions, have induced us to most carefully reconsider the opinion heretofore rendered. The counsel says: “ It is a remarkable fact that the judgment rendered reverses five points or rules of practice up to this time established by the jurisprudence of the State.” That in support of these rules he has “ cited precedents and authorities,” while in reversing them this court has cited none. “At one sweep the court has made five important changes in our jurisprudence,” and he no longer “ dares tell a client how the law stands!” Reminding the court that its pride of opinion makes it his adversary, he proceeds to demonstrate our errors.
It requires but a brief experience to teach judges that their decrees are frequently subversive of the “established jurisprudence” only because they are adverse to the desires and not responsive to the hopes of counsel. Without arrogation, we think it may be safely asserted that judges, who have no interest, feeling, or passion to warp their minds, will more frequently be right in their conclusions than will the counsel who has been wrought to white heat by the friction of combat.
I.
The first point wherein we are charged with the subversion of the jurisprudence is in having held that an order of sequestration, rendered at chambers, which did not fix the amount of bond, was fatally defective,. and that the judge could not, months after the writ had been executed, cure the defect by an order fixing the bond ¡nunc pro tunc. The counsel cites us to the authorities overthrown. They are found in 7 An. 284; 1 R. 165; 3 An. 260; 6 An. 701 and 707; 12 An. 349; and 25 An. 115.
We have studied these cases attentively, and if there is one of them that sustains the proposition that the bond may be fixed nunc pro tunc, in eases of the conservatory writs of injunction, sequestration, etc., we have failed to find it.
We understand those eases as holding what we had supposed to be *76elementary, to wit: That where an order has been made, or a proceeding had, in a cause pending in a court of record, and where, from oversight or negligence, the record does not show that such order has been rendered or proceeding been had, the court may order it to be entered of record mine pro tunc. Even this rule must be confined to orders and proceedings in open court; for in granting orders at chambers the judge does not manifest or declare his will otherwise than in writing. As was said in one of the cases cited by plaintiff, 12 An. 349, “ the judicial acts of a court of record are evidenced by the record alone ; that no parol proof of a verbal order is admissible to supply the want of record evidence. That an order rendered, but not' entered, may in proper cases be entered, nunc pro time.”
II.
In the second place, we held that where the jurisdiction of a court existed only by reason of its seizure of property, if that seizure was illegal and void, the court has no jurisdiction. In other words, the seizure being the basis, the reason, of its jurisdiction, the seizure failing, the jurisdiction was gone. Sublap fundamento, caditopus. As a corollary of this, we held that the jurisdiction was limited to, and measured by, the amount of the debt for which the seizure was effected; and that further money demands, in amended petitions, for which no seizure was made or prayed were therefore beyond a jurisdiction which rested only on the seizure. The only case cited as overturned by these views is that of Ohio Ins. Oo. vs. Edmonson, 5 L. 298. In that case the plaintiff, claiming a lien on a steamboat, presented a petition setting forth the nature, etc., of its claim, and prayed for a writ of provisional seizure. The facts stated being duly sworn to, the writ was granted. In a supplemental petition plaintiff alleged that the facts stated in its original petition entitled it to a writ of sequestration also. To this supplemental petition-was annexed plaintiff’s affidavit that the facts stated in the original petition were true.
Held, that as the facts of the original petition were sworn to, and entitled the plaintiff to a sequestration, and as no new facts were set out in the supplemental, it was not necessary for him to swear to its allegations. The court intimated, and correctly, that the second affidavit to the facts of the original was unnecessary, as they were already sworn to before.
The court simply held that the original petition and affidavit thereto entitled the plaintiff to either or both writs. We leave the counsel to trace the slightest analogy between that case and this. We cannot.
III.
The plaintiff brought suit against the widow and tutrix administering to recover a debt of the deceased. She subsequently renounced the *77community, and was superseded by the appointment of an administrator (Ruiz). Thereupon she alleged that she had no capacity to stand in judgment for the estate, and averred that she had no personal interest in the property. At this juncture, Ruiz, the administrator, who superseded the tutrix, came forward and asked to become party to the suit. He was the only possible person contradictorily with whom plaintiff could proceed. But the plaintiff excepted to Ruiz’ right to appear or intervene; had him dismissed from the case. Then he had it solemnly adjudged that the widow and tutrix had put herself out of court, and could no longer be heard, and thereupon proceeded to take an ex parte judgment against the widow and tutrix, limiting his judgment in execution to the property sequestered. In other words, having expelled from the case all opponents, having no longer an adversary “ to molest or make him afraid,” he proceeded ex parte to the proof of his claim, and took j udgment therefor “against the widow and tutrix” whom he had just had ejected from the ease as being without capacity and without interest! We declared the judgment so taken a nullity, for want of a defendant. The counsel says that in so holding we have overruled two decisions of this court, and violated logic as well as law. We leave him to wrestle with the problem, remarking en passant, that it is a mere delusion to suppose that plaintiff’s suit was what is known technically as a “ proceeding in rem.” That proceeding is provided for in C. P., arts. 285,290, et seq. It can only be resorted to where the party has a privilege on a thing “ either lost or abandoned by its owner, or whose owner is either unknown or absent.” Even then, “ an advocate ” must be appointed for the owner, and public notice be given in the papers.
IY.
Counsel says he has cited six leading eases to the effect that an intervenor cannot except to the jurisdiction of the court, and that we have held that he can do so.
Plaintiff was the creditor of an estate opened in Assumption. He seized property of that estate in Orleans, claiming privilege thereon. We waive any decision as to his right to do so. At the time of bringing suit, the estate was administered by the widow as natural tutrix, and she was properly sued as its representative. But before any progress had been made in the suit, she was destituted from the administration, and superseded by Ruiz as administrator. She pleaded these facts. They were not, and could not be, denied. What, under these circumstances, should plaintiff have done ? He should at once have asked to have Ruiz cited as defendant, he being the successor of the tutrix in the administration. Plaintiff did not do so. But Ruiz came without citation and asked to be admitted to the defense of the suit. Upon reflection, we see no reason why the heir or legal representative or successor of a *78defendant, may not, on his own motion, make himself party in lien of the person to whom he succeeds, upon proof that he is such representative. Otherwise, plaintiff by neglecting or refusing to have him cited might keep a succession open forever. We held that Ruiz could make all the defenses that the tutrix could or did make. He was in reality the defendant, and the only defendant that there could be in the case, after his appointment as administrator. Besides, he had a right to claim from plaintiff the property or funds of the estate illegally held by him under bond. No other court could'have restored him that possession. He had a right to adopt and insist upon the defenses made by his predecessor as defendant. Why cite to us, as applicable to this case, authorities which treat of the intervention of third persons ? Can there be a suit with only a plaintiff and an intervenor in it ? If Ruiz was not defendant, then there was no defendant, and therefore no suit.
Y.
On the subject of the different effects of release-bonds in attachment and in sequestration, we only desire to add to what we have already said a few observations.
It would be strange indeed if a plaintiff could become owner of property by simply sequestering it on a claim of privilege or ownership and bonding it. Yet plaintiff’s counsel insists that the effect of plaintiff’s release-bond is to put the property at his disposal. Is it possible that because I have a privilege on a thing, sequester it, and bond it, I can dispose of it at my pleasure? Could not the owner revendicate it in kind in the hands of my vendee? Would not any sale of it by me be absolutely void ? Is it not manifest then that a plaintiff in sequestration gets by his release-bond only the custody and keeping of the thing pending the litigation ? That he holds the property for the court, and not for himself? Yet the counsel cites us to 24 An. 570, as authority for the doctrine that plaintiff in such case can dispose at pleasure of the thing sequestered. The case decides nothing of the sort, and would be absurd if it did. It simply decides that the defendant and owner who has bonded his property under sequestration may remove it from a rented place which he is leaving. Of course he can. He is its custodian, as well as its owner.
We see no reason to change our former conclusions, and the rehearing is refused.