Cook v. State

16 La. 288

• Court: Supreme Court of Louisiana
• Decided: October 15, 1840
• Status: Published

Opinion

Marlin J.,

delivered the opinion of the court.

The plaintiff is appellant from a judgment dissolving an injunction, staying the execution of a judgment against him, as bail of Anding on a prosecution for assault and battery. The grounds alleged by the plaintiff, in obtaining the injunction, are that no bond exists, such as that on which said judgment was rendered ; that no notice was given to him of the judgment ni si, which preceded the final one, nor any copy of it served on him ; that if such bond exists, he has a good defence against it; and that said judgment is illegal, and ought to be set aside as a nullity.

It does not appear to us, that the court erred. It is not pretended that the bond did not exist at the time judgment was rendered thereon.

If the notice of the judgment ni si, and a copy of it were not served on him, and the judgment was improperly rendered without them, the remedy was by appeal. And if the judgment is so illegal that it ought to be set aside by an action of ... . . . . , . , nullity, such an action ought to have been brought, and may still be instituted.

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