Cox v. Bradley

Same case — On a Re-hearing. Merrick, C. J. A re-hearing was granted in this case as to W. C. Bradley, who was represented by a curator ad hoc. It is contended that he is not before the court, never having been either personally cited, nor according to the rules prescribed under the head Attachment, in the case of absentees. Plaintiff in his petition alleges, that W. C. Bradley is an absentee, and prays that a curator ad hoc be appointed to represent him, and that plaintiff have judgment against certain persons, debtors of Bradley, cited as garnishees. The petition was not accompanied by an affidavit; no order of the court was made; ho bond was given, and no attachment issued. The garnishees were cited to answer the petition, and petition and citation were served upon the curator ad hoc in the ordinary way. It appears to us, that W. C. Bradley has not been properly cited. The proceeding being intended to be in garnishment as against an absentee, among other things, the citation ought to have been affixed to the door of the court-house, in conformity to Art. 254 C. P., and not merely served upon the curator ad hoc. Moreover, the party seeking to detain the property of the defendant in the hands of the garnishees, to answer his demand, ought to have given bond, as required by the Code of Practice, Art. 245. The supposed debtor may suffer as much damage by the detention of his money in the hands of a garnishee, as by the seizure of a slave or any other piece of property. It is, therefore, ordered, adjudged and decreed by the court, that the judgment heretofore pronounced by us remain undisturbed, so far as the same affirms the judgment against Isaac Wiggins, as administrator of 'the succession of John R. JSftigent, deceased; but that, as to the said defendant, Wm. C. Bradley, and said garnishees, H. D. Yarborough and D. McLaughlin, said judgment be set aside, and the judgment of the lower court be avoided and reversed as to them; and it is further ordered, that there be judgment in favor of said defendant, Bradley, and said garnishees, Yarborough and McLaughlin, as in case of nonsuit, and that they recover against the plaintiff their costs in the lower court; the costs of the appeal to be paid one-half by the plaintiff, and the other half by the defendant, M. E. Cox, administrator.