ON REHEARING
ODOM, J.The plaintiffs bring this suit to set aside the sale of certain property situated in the Parish of Claiborne in which they claim to own an interest sold under a judgment ordering a partition thereof.
They allege that at the time the judgment was rendered and the sale made they were minors and had no tutor but that the court undertook to appoint a tutor ad hoc to represent them.
It is specifically alleged:
“That the said pretended sale was an absolute nullity insofar as your petitioners were concerned, for the reason that they were minors at that time, and were not ■made parties to the pretended partition suit.”
And that:
“That there was no citation issued in the said cause, for the purpose of bringing the said minors into court by service of the same on the said tutor ad hoc, that he was without authority to waive service of such citation or to waive service of copy of the petition, and that his acts in so doing were an absolute nullity, and that accordingly, the judgment rendered against the said minors and the sale thereunder were absolute nullities, at least insofar as your petitioners were concerned.”
And in an amended petition it is reiterated :
“That there was no citation issued in the said cause for the purpose of bringing the said minors into court by service of the same' on the said tutor ad hoc.”
Under a motion and prayer for oyer they file in court a complete record of the partition suit and proceedings under which the property in question was sold, which court ordered the plaintiffs to produce and was accordingly done.
The record brought up and filed shows that on September 25, 1907, the then presiding judge appointed E. H. McClendon, Esq., tutor ad hoc to represent the minor defendants in the suit.
On the same day the tutor ad hoc filed his written acceptance of the trust and the following acceptance of service:
“I hereby acknowledge service of copy of petition and citation in this case, reserving time and delays. This Sept. 25, 1907.
“(Signed) E. H. McClendon,
“Tutor act hoc.”
The record as brought up does not disclose that a citation was in fact issued by the clerk of court directed to the tutor ad hoc or that a copy of the petition was made to be served on him.
There is nothing, therefore, to show that such was done, except the acceptance of service thereof as above shown.
The defendant, upon the filing of the record in this case, tendered an exception of no cause of action, which was sustained by the court and the plaintiffs’ suit dismissed.
The plaintiffs have appealed.
As a cause of action, the plaintiffs set up that at the time the judgment ordering the property sold t'o effect a partition was granted and at the time the sale thereof was made, they were minors and that they were not cited according to law.
As we construe the petition, the plaintiffs make an attack upon the verity of the acknowledgment of service of citation and petition upon the tutor ad hoc.
Counsel for defendants say, in brief, substantially, that the plaintiffs’ petition cannot be construed as an attack upon the correctness of the recitals of the tutor acl hoc. but that it should be construed as attacking the judgment and the sale thereunder because the plaintiffs allege that the tutor ad hoc had no right to waive citation.
*785It is true that plaintiffs in their petition say that the tutor ad hoc attempted to waive citation, etc., but we think, in view of the fact that plaintiffs have made the specific allegation that no citation was ever issued to be served on the tutor ad hoc as a basis for the suit, it was intended by the pleader to attack and challenge as false the statement of the tutor ad hoc that service of citation and petition was made upon him.
Citation is the foundation of all actions and without it the proceedings are absolute nullities.
The settled jurisprudence of this state is that a curator ad hoc or a tutor ad hoc cannot waive service o£ citation or petition.
This point is not controverted but is conceded by counsel for defendants; but counsel, in support of his contention that the proceeding and sale in this case were valid, has cited a long list of authorities holding that a curator ad hoc may validly acknowledge service of citation and petition, notably the cases of:
Millaudon vs. Beazley 2 La. Ann. 916; Bartlett vs. Wheeler, 31 La. Ann. 540; Fly vs. Noble, 31 La. Ann. 667.
In each of the cases cited the. court held that a curator ad hoc may validly accept service of citation and petition; but in those cases the question whether citation had in fact been issued was not raised but the court assumed that it had issued and that the curator ad hoc in reality accepted service thereof.
In Fly vs. Noble, the court says:
“The curator ad hoc does not appear to have waived service of necessary proceedings. He acknowledged service of the petition and citation for the homologation of the account. The acknowledgment implies an admission of actual service.”
In none of the cases cited was the verity of the curator ad hoc’s acknowledgment of service challenged.
In the cited cases the judgments were not sought to be set aside on the ground that no citation had in fact issued. The court, assumed that citation had issued, and the question was whether the curator ad hoc could accept service thereof so as to bring the absent defendant into court, and the court held that he could.
But in the case at bar the plaintiffs allege that no citation was issued, and when the record in the suit is brought up it contains no evidence of the issuance of any citation nor of the making of a copy of the' petition to be served on the tutor ad hoc.
In the case of Ticknor vs. Calhoun, 28 La. Ann. 259, the court said:
“And after trial and judgment it was discovered that no evidence of the citation on the absentee had been made.”
And—
“The curator ad hoc cannot dir-ectly or indirectly Waive citation.”
In the case of Heirs of Morris Miller vs. J. N. Secton, on the docket of this court, it was alleged that the judgment under which the property was sold was an absolute nullity for the reason that the plaintiffs were never cited.
In that case, as in this, the curator ad hoc signed an acceptance of citation and petition, in the following words:
“I hereby accept the appointment as curator ad hoc in the above and foregoing petition, acknowledge service of the above and foregoing petition and citation.”
The late Judge Porter, as the organ of the court, in the course of his opinion said:
“The evidence conclusively shows that no copy of the petition was ever issued or served upon the curator ad hoc. His purported acknowledgment of the service and citation was a pure fiction, the acknowledgment of something which had no existence. It was to all intents and purposes a waiver of something which was essential *786to his existence as curator ad hoc and to his authority to represent them.”
And in the case of Wallace Blackwell, et al. vs. Cicero Campbell, No. 1052 on the docket of this court, a sale was attacked on the ground that it was void for want of service of petition and citation.
In that case„ a curator ad hoc was appointed and acknowledged service as follows:
“I hereby acknowledge service of the above and foregoing petition and citation. This Nov. 11, 1910.”
The late Judge Dawkins, as the organ of the court, in his opinion said:
“The record in that case is bare of any evidence that any copy of petition or citation ever issued, nor is there anything to show that the sheriff ever made any return into the court. In fact, the record is composed merely of the petition, the curator’s answer and the judgment.”
In the case at bar, the plaintiffs make 'the specific allegation that no citation was issued. If none was issued, the tutor ad hoc could not accept service of one. He could not accept service of that which did not exist. ' Therefore, the' pleadings tendered the issue, not whether a tutor ad hoc may accept service of' citation and petition, but whether proceedings based upon acknowledgment of service of petition and citation by the tutor ad hoc are valid even though no citation was ever issued.
The acknowledgment by the tutor ad hoc that such service was made upon him will not be .accepted by the court as conclusive proof of the fact of the issuance and service thereof; and when the verity of such acknowledgment by him is challenged, it is the duty of the court to hear evidence on that point.
In the case of Blackwell, et al. vs. Cicero Campbell, supra, the late Judge Dawkins, as the organ of the court, used this language:
“To acknowledge service of a document after it has already been made, would be a vain thing. It is well known that acknowledgment of service of petition and citation are made for no other purpose than with the view of dispensing with the service of those documents and the cost arising from the issuing and serving of them. In the light of this common knowledge, the courts should require that proof be made that service in accordance with the requirements of the statute has been made on the curator, even when that individual acknowledges, as in the case in question, that service has been made.”
It is elementary that for the purposes of the trial of an exception of no cause of action the allegations of the petition must be accepted as true.
We think the court should have' overruled the exception of no cause of action and let the case go to trial on its. merits.
For the reasons assigned, it is ordered, adjudged and decreed that tile judgment appealed from be avoided and reversed, and it is further ordered that the' exception of no cause of action be overruled and the case reinstated on the dociet of the district court of Claiborne parish, there to be proceeded with according to law/