On Application for Rehearing.
Watkins, J.On the 7th of February, 1898, we handed down an opinion in this cause reversing the judgment appealed from, dissolving the writs of attachment and sequestration, and dismissing; plaintiffs’ suit, same having been prosecuted against the defendant, as an absentee, and- the service of the writs having been founds defective.
Thereupon the plaintiffs’ counsel made an application for a rehearing on the sole ground “ that the opinion of the court is based wholly and entirely on the assumption that no citation whatever had issued to the defendant in the cause,” whereas there had been, in fact-(though same had been inadvertently omitted from the transcript-of appeal), citations regularly served upon both the curator ad hoc and upon the defendant,-in person, in the parish of Ouachita.
Subsequently to the filing of said application and as auxiliary to and in aid of same, we granted the plaintiffs a writ of certiorari. addressed to the clerk of the District Court requiring him to pro - duce the original citations referred to or certified copies of same, to-be placed in the transcript in order to complete and perfect, same- and make it conform to the record in the. court below.
The failure to transcribe the said citations into the- transcript. *1082being a fault attributable to the clerk, and the absence of same not having been brought to the attention of either counsel in the case, we were of opinion that the ends of justice would be best subserved by granting the relief sought, even pending an application for rehearing, whilst recognizing this course of proceeding as a departure from the usual course in such matters.
The original citations having been produced and filed the question for us to decide is to what extent and in what manner does their production change the situation and necessitate an alteration in our decree, our former judgment having been set aside and a new trial granted.
The following data from the record is worthy of consideration, viz.:
1. The citation to the curator ad hoc was served on him on the 16th of January, 1896.
2. The motions to dissolve were filed on the 28th of January, 1896.
3. Citation to the defendant was personally served upon her on the 25th of March, 1896.
4. The motions to dissolve were tried and overruled on the 16th of December, 1896.
5. The answer of the defendant was filed on the 23d of December, 1896, fully reserving the benefit of her exception.
It is quite obvious that the service of citation upon the defendant, in person though R were, had no effect upon the record or the rights of parties thereunder; but that they remained just as they existed on the 23d of January preceding, and subject to the exception and motion of defendant to dissolve.
Counsel for the plaintiffs on the second hearing press the argument that the defendant did not rest her case upon an exception and motion to dissolve exclusively; but that she put at issue the merits, in a limited sense, and by so doing waived the benefit of her exception, and submitted herself to the jurisdiction of the court and thereby lost the benefit of her exception.
The following is the defendant’s exception in extenso, viz.:
“ Now comes the defendant in the above entitled and numbered suit and moves to dissolve the writ of attachment and sequestration, and dismiss the suit on the following grounds:
“ 1. Because, she has never been legally cited. That she is a resident of the parish of Ouachita, and verily believes her residence was well known to plaintiffs when the suit was filed, and that the appoint*1083ment of a curator ad hoc to represent her, and service of citation upon him, was illegal and void.
“ 2. Even if she had been a non-resident of the State, the pretended citation would still have been null, from the fact that notice or copy of citation and of writs of attachment and sequestration were not posted at the court-house door, as the law requires.
“ 3. Respondent specially alleges that the allegations on which the writs of attachment and sequestration were issued were false and untrue. She avers that the writs of attachment and sequestration issued in this case were obtained wrongfully, maliciously, wantonly and vindictively, without just cause in either law or fact.
“ Wherefore she prays that the writs of attachment and sequestration be dissolved. And further prays that the demands of plaintiff be rejected, and that she may have judgment against the plaintiffs for twelve hundred dollars special damages over and above those claimed in her exception and motion to dissolve, and for costs and general relief.
“ (Signed) Thomas O. Benton, Attorney.”
The defendant appeared for the sole purpose of moving to dissolve the writs of attachment and sequestration, though the consequence of same was expected to be the dismissal of the suit, as she was sued as a non-resident.
The motion assigns three different grounds for the dismissal of the writs: (1) Because she had never been legally cited, not being an absentee; (2) because the writs had not been served as the law requires; (3) because the allegations on which the writs were obtained were false and untrue.
Evidently neither of these grounds of exception had any relation . — even the remotest — to the merits of the cause, which were indebtedness vel non.
They conclude with the prayer: “Wherefore she prays that the writs of attachment and sequestration be dissolved.”
Her further prayer relates to the rejection of plaintiff’s demand for the issuance and maintenance of the writs, and the allowance of twelve hundred dollars special damages.
The record shows affirmatively that the defendant’s motion to dissolve was filed on the 28th of January, 1896, and was tried and overruled on the 16th of December, 1896 — near twelve months having elapsed in the meanwhile. But it was not until the 23d of *1084December, 1896, that defendant’s answer was filed; and it contained a full reservation of all her rights under her exception.
We quote the following from the brief of counsel for the plaintiffs for the purpose of showing their total want of application to the facts of this case:
“ The precise question has frequently been decided:
“ In 4 la. 91 (Rowlett vs. Shepherd) the Court says:
“ It is true, as stated in argument, that citation is the basis on which every suit must rest; but appearance and pleading to the merits is always considered to cure the defect. Here the defendant appeared and pleaded to the merits, but before doing so he expressly excepted to the want of citation. Whether under our law, where exceptions, though they must proceed in order, may be put in at the same time with an answer to the merits, the objection to the want of citation could be considered as abandoned by presenting the eontestatio lites on other matters, need not be decided. In this instance the party went to trial on the merits, without requiring a de - cisión on the exceptions, and this we consider a clear waiver of it.
“ 1 An. 323 (Livingston vs. Dick), the Court says: ‘The defendant in injunction filed a written motion to dissolve the injunction, in which he alleges as grounds for the dissolution:
“ ‘ 1. That he had not been served with a citation, but that plaintiff had induced the sheriff to desist from proceeding in the case. This ground hardly requires notice. The objection of absence of citation was clearly abandoned by the defendant’s appearance and pleading in the cause, and going to trial before a jury upon the merits, without any disposition made of that part of the motion. ’ ”
Again:
“Your Honors have had this subject under consideration very recently. In the case of Williams vs. Commission Company, 45 An. 1013, defendants, non-residents of the State, were brought into court by attachment and the appointment of a curator ad hoe. The sheriff, in that case as in this, served the citation and petition on the curator ad hoe, but failed to post them at the court-house door. Defendants moved to dissolve the attachment on the ground, among others, ‘that the service is illegal, the required posting of the petition, citation and writ of attachment at the court-house door not having been complied with.’
*1085' “ The court says: ‘ In reference to the first proposition the plaintiff’s counsel argue that the defendants waived the informality of service of citation and writ of attachment by their appearance in the suit, and having furnished bond and obtained the possession of the property attached. * * *
“ ‘They appearedin the suit and unqualifiedly delivered to the sheriff their obligation to satisfy such judgment to the value of the property attached as may be rendered against him in the suit pending. It is the appearance authorized by Art. 259 of the Code of Practice. It is characterized as an appearance in the suit. The only question for our decision is, does that appearance cure the informality of service alleged?’ ”
The authority of those decisions is not doubted, but their applicability is lacking altogether, because the defendant’s motion to dissolve ' had been tried and overruled before her answer had been filed.
The point is not well taken, and can not be sustained.
We do not regard it necessary to decide whether or not the defendant was an absentee or a non-resident of the State at the time of the institution of -the suit, for the reason that personal service of citation upon her, while she was within the territorial jurisdiction of the District Court, during the pendency of the suit, is sufficient to submit her to that jurisdiction at the time judgment was pronounced, at least in so far as the debt was concerned.
It is evident, that the service of the citation upon the defendant personally, on the 25th of March, 1896, could not and did not have the effect of giving life to an attachment which bad not been legally and validly served.
The same reasoning applies with equal force to the writ of sequestration.
■ In so far as the indebtédness of the defendant is concerned, there appears to be no controversy, except with respect to the sum of four hundred and eighteen dollars, which is thus explained in the brief of plaintiff’s counsel:
“ The evidence shows beyond question, that in January, 1885, I. I. Davis, a merchant in Monroe, La., agreed to make advances to defendant’s plantations during that year. Under this arrangement, four hundred and eighteen dollars had been advanced by Mr. Davis, *1086when he formed a partnership with Mr. Elder, under the firm and name of Elder & Davis. The account against the defendant for four hundred and eighteen dollars was transferred by Davis to the firm of Elder & Davis, which firm continued advances to the defendant, through the year, amounting to five thousand six hundred and ten dollars and thirty cents.”
This statement is fully borne out by the record, and we are of opinion that the plaintiff's are entitled to a personal judgment against the defendaut for the entire amount claimed, and for which judgment was rendered in the court below; but in our opinion now, and as it was expressed in our original decree, the writs of attachment and sequestration should have been dissolved — the cost of the principal suit being taxed against the defendant, and those incident to the writs of attachment and sequestration against the plaintiffs.
With regard to the defendant’s demand for special and general damages, we think a proper allowance should be made, but we are not impressed with their gravity; nor do we think a large sum should be awarded.
The extent of the property seized should not control our judgment, notwithstanding a large amount was seized, as the proof does not show any great amounl of injury, trouble or inconvenience to the defendant. Attorneys were employed to dissolve the writs and a curator ad hoc was appointed.
Without particularly specifying the items of damage, we are of opinion that the sum of one hundred and fifty dollars would compensate the defendant for all of her outlay in expenses and attorney’s fees, including the fee of the curator ad hoc.
It is, therefore, ordered and decreed that our former decree be set aside, and that the judgment appealed from be affirmed, except in respect to the writs of attachment and sequestration; and that in respect of same that the judgment be amended by dissolving same at the cost of the plaintiffs, and that they be adjudged and decreed to pay the defendant as damages for the dissolution of said writs the sum of one hundred and fifty dollars, and that as thus amended the judgment be affirmed.