Bertoulin v. Bourgoin

70 La. Ann. 360

• Court: Supreme Court of Louisiana
• Decided: June 15, 1867
• Docket: No. 872
• Status: Published

Opinion

Hyman, C. J.

A definitive judgment was rendered in this case against the defendant, Mrs. Bourgoin, after a judgment by default had been taken against her.

She has appealed, and has assigned for error that she was not legally cited—the citation not having been properly addressed.

The citation was addressed, not to defendant, but to Mrs. Bertoulin.

The citation is defective in form. It should have been addressed in the name of the defendant. See Code of Practice, Art. 179.

Without a citation having been served on the defendant, or without her appearing or answering, no judgment could legally haye been rendered against her. Code of Practice, Art. 206.

It is contended that the defendant could not have but known, in the service of this informal citation, that she was to appear and answer the suit, and that, therefore, the defect in the citation is insufficient to annul the proceedings of the lower Court.

Knowledge, on her part, that she would have to defend the suit, did not make a defective and insufficient citation a legal one, nor render valid proceedings in the suit against her. See Art. 206 C. E.already cited.

Let the judgments of the District Court be avoided, annulled and reversed, and let the case be remanded to the said Court, to be proceeded with according to law.

The plaintiff to pay the cost of appeal.