Zimmer v. Thompson , 13 La. 22 ( 1839 )

Martin, 3.,

delivered the opinion of the court.

The plaintiff seeks the rescission of a sale of a slave, on the ground that she has been sold as a good house servant, plain cook, washer and ironer, and is unable to cook, wash, or iron ; and labored besides at the time of the sale, and still labors under a redhibitory disease. The general issue was pleaded, there was judgment for the plaintiff, and the defendants appealed.

Our attention is first drawn to a bill of exceptions, taken to the opinion of the court, ordering the trial to proceed, notwithstanding defendant’s allegation, that the cause had been irregularly set down for trial, before her vendor, whom she had prayed leave to call in warranty had been cited.

Where a war-rantor is called in by the defendant and the sheriff’s return shows he has not been found, it is the duty of the -party calling him. to use all diligence to have him cited, or a curator ad hoc appointed to defend him, if he resides out of tiie state.

It does not appear to us the court erred. The sheriff returned, that the warrantor could not be found in his parish, and the defendant suffered more than a month to elapse without taking out an alias citation, or causing a curator to be appointed to the warrantor, who resides out of the state, to the knowledge of the defendant. A warrantor being cited by the defendant, for the benefit of the latter, the plaintiff is under no obligation to take any steps to have the citation served or a curator appointed; nor to wait an unreasonable time for this being done by the defendant.

On the merits, the plaintiff fully proved his case.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.