Brown v. Trent

12 La. 600

• Court: Supreme Court of Louisiana
• Decided: October 15, 1838
• Status: Published

Opinion

Bullard, J.,

delivered the opinion of the court.

The principal question presented in (his case is, whether the notice of judgment was regularly served upon Foy, for whom the defendant was bail; for if it was, then the fieri facias did not issue improvidently, and on a return of nulla bona, the judgment creditor was entitled to his ca. sa.

It appears that Foy had his domicil in the parish, at the time the suit was brought, but that he went away less than a year before judgment was rendered, and (hat the notice of judgment was served on F. Foy, by leaving it with a free white person above the age of fourteen, (say Robert Klady,) at his usual place of domicil, about twenty-eight miles from the court house in Monroe. It appears to us this would be a sufficient return of service upon a citation. But the code does not appear to have provided for the manner in which notices of judgment shall be served.

It is contended by the appellee, that the notification of judgment must be made in the manner pointed out by article 429 of the Code of Practice, whenever the adverse party does not reside at the place where the court is held, before which the cause is pending, and who has no advocate of r 4 07 record, to wit: by handing to the cleric of the court, a copy tobe by him stuck up in his office. This mode 0f giving notice applies more particularly to interrogatories, to be propounded to witnesses whose depositions are to be taken, but is to govern in all cases where written notice is required, pending the cause when the party to be notified has no , . . , , , , cate of record, and does not reside at the place where the ennrf iq held COUU IS neici.

. if a defendant hi>s only left Ay )y. he does not domicil; °andhif Souse ninnt-\vhich last resided is the one where-service of citation and other process may be made- serving notice of judgment, it is abie^oadopuhe P™*',0®» which would be required in the service cess”'^”81 pr°" In the silence of the code as to the manner of Notice of judg-meet must be served in the f^seiwing^pe-an.d °jta-tions in the first instance.

Foy was sued as a citizen of the parish of Ouachita, where he had his domicil. At the time notice of judgment was served, he had removed either temporarily or permanently from the state. If the absence was temporary, he certainly has not lost his domicil, and if permanently, the house in which he last lived, is the one where service may be made. 6 Martin, N. S., 467.

In the silence or the code, as to the manner of service of notice of judgment, we think it most reasonable to adopt that which would be required in the service of original process. 1 ... ° „ A_ We understand the uniform practice in the courts of the. first instance, has been to give notice in that manner, and we see no good reason in this case for unsettling that practice. We ... ... 1 conclude that the court erred m giving judgment of nornsuit, but the record does not enable us to pronounce finally upon the case.1

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, the non-suit set aside, and that the case be remanded for further proceedings, according to law.