Collins v. Walling

Supreme Court of Louisiana

Collins v. Walling

6 La. Ann. 702

DecidedOctober 15, 1851

StatusPublished

This text of 6 La. Ann. 702 (Collins v. Walling) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Collins v. Walling, 6 La. Ann. 702 (La. 1851).

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Opinion

The judgment of the court was pronounced by

Rost, J.

This is an action upon a promissory note. The defendant having failed to appear, judgment was entered against him, by default, and after the legal delays and satisfactory evidence of the debt, it was made final. The defendant has appealed, and alleges in this court, that he had not been properly cited. The return of the sheriff is as follows: “ Received, July 31st, 1850, and on the same day served a copy hereof, together with a copy of petition, on James Walling, at his last place of residence in the parish of Caddo, by handing them to a free white person, over the age of fourteen years, who was known to' me by the name of J. W. Gamble, who was residing at the said last place of domicil of the said James Walling, in the town of Shreveport, parish of Caddo, the said Watting being absent at the time of service.”

This return does not show that the defendant had left the parish permanently, but merely states, that he was absent at the time of the service; he may have been temporarily absent, and as he was present when judgment was rendered against him, the presumption is, that such was the fact.

In the case of Whiting v. Haggerty, we held, that the omission to state in the return, that the service had been made at the usual place of domicil or resi[703]*703dence of the defendant was not fatal, and that a return, stating, that it had been made at the usual place of abode of the defendant, satisfied the requisition of the code. A service at the last place of residence of the defendant, during his temporary absence, satisfies them equally well. It is proper that sheriffs should, on all occasions, follow the words of the Code of Practice in their returns; but whenever the returns made, comply substantially with the law, the refusal to give them effect, on purely technical grounds, would amount to a denial of justice.

The defendant has no defence whatever on the merits.

The judgment is therefore affirmed, with costs.

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The judgment of the court was pronounced by

Rost, J.

This is an action upon a promissory note. The defendant having failed to appear, judgment was entered against him, by default, and after the legal delays and satisfactory evidence of the debt, it was made final. The defendant has appealed, and alleges in this court, that he had not been properly cited. The return of the sheriff is as follows: “ Received, July 31st, 1850, and on the same day served a copy hereof, together with a copy of petition, on James Walling, at his last place of residence in the parish of Caddo, by handing them to a free white person, over the age of fourteen years, who was known to' me by the name of J. W. Gamble, who was residing at the said last place of domicil of the said James Walling, in the town of Shreveport, parish of Caddo, the said Watting being absent at the time of service.”

This return does not show that the defendant had left the parish permanently, but merely states, that he was absent at the time of the service; he may have been temporarily absent, and as he was present when judgment was rendered against him, the presumption is, that such was the fact.

In the case of Whiting v. Haggerty, we held, that the omission to state in the return, that the service had been made at the usual place of domicil or resi[703]*703dence of the defendant was not fatal, and that a return, stating, that it had been made at the usual place of abode of the defendant, satisfied the requisition of the code. A service at the last place of residence of the defendant, during his temporary absence, satisfies them equally well. It is proper that sheriffs should, on all occasions, follow the words of the Code of Practice in their returns; but whenever the returns made, comply substantially with the law, the refusal to give them effect, on purely technical grounds, would amount to a denial of justice.

The defendant has no defence whatever on the merits.

The judgment is therefore affirmed, with costs.

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Bluebook (online)

6 La. Ann. 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-walling-la-1851.