Ballard v. Lee's Administrator , 14 La. 211 ( 1839 )

Martin, J.,

delivered the opinion of the court.

The defendant and appellant has placed his case before us, on an assignment of errors, one of which only it becomes necessary to notice : to wit, the want of legal service of the original citation.

The sheriff’s return states, “that he 'made service by leaving a copy of the .citation and of the petition with William French, a free white person over fourteen years of age, residing at the defendant’s domicil in this parish.”

The Code of Practice, article 189, requires “that service . . 1 must be made by leaving copies of the citation and petition ^ie usual place of domicil or residence of the defendant, if be absent, by delivering them to a free person apparently above the age’of fourteen, living in the house.”

There is but one place of service, which is the domicil of the defendant. The service must.be made there, and if it be made elsewhere it is bad. Nothing shows that French received the papers from the sheriff at the domicil of the defendant. Huntstock vs. His Creditors, 10 Louisiana Reports, 488.

ifajudgment before the defendant is in service Vf'cita-afmrwawis personally cited, final judgment cannot.be enter-judgmént°by fle-fault being again

' ' _ The plaintiff’s counsel, however, has contended that this defect in the original citation is cured by the service.of a copy of an amended petition, and a citation to answer thereto. The suit was brought on a bill of exchange. The original petition claimed the amount of the bill, and interest ect the rate of five per cent, per annum, and ten per cent, i . v damages. JNo answer having been filed, judgment by default was taken on ihe 7th of November, 1838. After-wards, to wit, on the 12th February, 1839, the plaintiff, with leave of the court, filed an amended petition, 'in which he alleges, that the bill having been drawn in the state of Mississippi, he was entitled to interest at the rate of eight per cent., and prayed judgment accordingly.

A copy of this amended petition, and a citation to answer thereto, was duly served on the defendant in person. He filed no answer, and the 6th March following, judgment by default was taken on the amended petition.

On the 5th of April, 1839, a final judgment was rendered for the principal, interest, damages and costs, the motives of which are stated to be, the law and evidence being for the plaintiffs; “and the judgment by default not having been set aside, and the plaintiffs having proved their demand, it is ordered, &C.”

The first judgment by default having been taken while the defendant was not in court, was illegal, and must be considered as a nullity. The second, confined expressly to ... 1 J the amended petition, is the only one which could be legally made final. The court, in our opinion, erred in extending it to what was demanded in the original petition.

It is, therefore, ordered; adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed; and that ours be for the defendant, as in case of non-suit, the plaintiffs and appellees paying costs in both courts.