On Motion to Dismiss ti-ie Appeal.
Breaux, J.
From a final judgment signed on the 30th day of June, 1899, an appeal was taken.
[578]*578The petition for the appeal was filed on the 25 ih day of June, 1900, and on the same day an appeal bond was filed and the appeal was made returnable on the first Monday in November, 1900.
In his petition for an appeal, appellant prayed that appellee be cited. The citation is addressed to plaintiff, Henry Levy, the appellee, The return of the sheriff on the citation sets out that on July second, 1900, due citation was made on the appellee by service on B. R. Forman, his (appellee’s) attorney; that he, Herman Levy, appellee, was absent from the State. Appellee moves to dismiss the appeal on the ground that he has not been served with citation of appeal, as required by law.
The affidavit of appellee filed before this court sets out that his residence and domicile have for many years been in New Orleans, and that during the months of June and July) 1900, he was at No. 2423'Maga-zine street, where citation of appeal could have been served upon him at any time from June 30th, 1899, the date of the judgment appealed from, to the date the appeal was made returnable in November, 1900; and his place of business was at 528 Canal street, where he could have been personally served with citation.
The affidavit of the attorney for appellee states that when the deputy sheriff handed him the citation of appeal addressed to Herman Levy, he told the deputy that he (affiant) had no authority to accept service; that Herman Levy lived in New Orleans and could be served personally at his domicile.
On the other hand, on the part of the appellants, Ella Levy et al., Lythe, the deputy sheriff, deposes that all effort to find Herman Levy at his domicile, No. 2426 Magazine street, proved unavailing; that he was then directed to serve it at his place of business, Levy, Loeb & Co., on Canal street; that, upon calling at that place, he was informed by one, apparently in authority, that Levy was absent from the State and was then in Europe. The affidavit of the other deputy also sets out that he failed to find the appellee after diligent inquiry, and that domiciliary service, for the reason stated, was not possible.
The appeal must be taken within the twelve months after the date of the judgment. The order of appeal was obtained and the appeal bond was given within the twelve months,.and the transcript was filed before the return day.
Appellee, for a dismissal of the appeal, urges in.the first place that citation of appeal must be served on the appellee personally, or at his [579]*579domicile, when he resides in Louisiana, and on the appellee’s advocate, when he resides out of the State. ,
True, as urged by the appellee, that citation of appeal must be served on the appellee personally or at his domicile, when he resides in the State, but it does not always follow'that the appeal must be dismissed in all cases of failure to comply with the law’s requirements. The failure or inability of the sheriff to make the service of citation or an irregular service of citation of appeal may render it proper apd legal to order another citation to issue and service to be made.
The contention of the appellee, for the dismissal is, that he was in the State, and that, in consequence, service should not have been made upon his attorney. The appellee may have been present; none the less, he could not be found, although diligent search was made for him by the deputies. It was equally impossible to make a service at doimcile, for the reasons stated in the affidavit of these officers. A service made upon the attorney, under these circumstances, although not an entirely legal service, is not absolutely void.
In Marshall vs. Watrigant, 13th Ann. 619, the appellee had not been cited at all. Service was made on the attorney and sustained, on the ground that as the appellees had removed from the jurisdiction of the court in violation of law, appellant was not obliged to search for her beyond that jurisdiction, and that service upon her counsel was as good as if the appellee had departed from the State.
We take it, in the case before us for decision, that due search was made for this appellee and that he could not be found. It was the duty of the sheriff to serve the citation and make his return. He exercised his best endeavors to execute the duty, and failed, because the appellee could not be found. It was never within the law’s contemplation that appellees should ‘be benefited because of the sheriff’s inability to find them or a domicile at which to make service upon them. The alternative in such a ease, service on the attorney, may not be complete and sufficient and yet be complete enough for the appellant to bring up his appeal.
It must be borne in mind that the irregularity is due to the appellee himself, who could not be found, and who had no domicile at which service could have been made. It wias not an irregularity for which the sheriff or the appellant could be held responsible. It would-be different if the sheriff had made passing inquiry for the appellee which had not resulted in his finding him and had then called at the office of his [580]*580attorney and served citation of appeal upon the attorney. There was, as we -take it, diligent inquiry made and it became thoroughly well known to the sheriff’s department that no service could be made as required by the -rules. It was only after this was well understood that service was made as before stated.0
As to the objection that citation of appeal was served on the attorney after the twelve months had elapsed after the date of the judgment, we will remark that it has been held that this also is not sufficient to dismiss the appeal when it does not appear that the delay is imputable to the appellant and when the service is made a sufficient number of days to 'be in time before the return day.
In John Lewis vs. D. N. Hennen, 13th Ann. 259, the court said that the appeal had been regularly taken and the bond was given in due form. The first citation was not served because of the absence of the appellee. It did not appear that the defect, error, or irregularity was imputable to the 'appellant; and, furthermore, it is no objection to the service of the new citation that more than twelve months had elapsed since the judgment of the lower court had been rendered. The proceedings required of the appellant had all been filed in due time and the court said that the “ rest is cured by the statute.” This was affirmed in Jones vs. Weeks, 14th Ann. 698, in which it was held that an irregular service of citation may be cured after the twelve months have elapsed since the judgment of the lower court was rendered.
Although the point was not raised in Murphy vs. Factors’ and Traders’ Ins. Co., 33rd Ann. 455, yet it must have been evident to all concerned, as well as to the court, that the twelve months from the date of the judgment appealed from had elapsed when- a second service was ordered. The rule met with this court’s approval in Cockerham vs. Bosley, 52nd Ann. 65.
After citing another decision, we will bring our own to a close. In Broussard vs. Broussard, 2nd Ann. 769, the plaintiff alleged that she had not been cited at all. This, the court held, was not sufficient to authorize the dismissal of the appeal, that it is the duty of the clerk to issue, and of the sheriff to serve, the citation ¡and make his return.
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On Motion to Dismiss ti-ie Appeal.
Breaux, J.
From a final judgment signed on the 30th day of June, 1899, an appeal was taken.
[578]*578The petition for the appeal was filed on the 25 ih day of June, 1900, and on the same day an appeal bond was filed and the appeal was made returnable on the first Monday in November, 1900.
In his petition for an appeal, appellant prayed that appellee be cited. The citation is addressed to plaintiff, Henry Levy, the appellee, The return of the sheriff on the citation sets out that on July second, 1900, due citation was made on the appellee by service on B. R. Forman, his (appellee’s) attorney; that he, Herman Levy, appellee, was absent from the State. Appellee moves to dismiss the appeal on the ground that he has not been served with citation of appeal, as required by law.
The affidavit of appellee filed before this court sets out that his residence and domicile have for many years been in New Orleans, and that during the months of June and July) 1900, he was at No. 2423'Maga-zine street, where citation of appeal could have been served upon him at any time from June 30th, 1899, the date of the judgment appealed from, to the date the appeal was made returnable in November, 1900; and his place of business was at 528 Canal street, where he could have been personally served with citation.
The affidavit of the attorney for appellee states that when the deputy sheriff handed him the citation of appeal addressed to Herman Levy, he told the deputy that he (affiant) had no authority to accept service; that Herman Levy lived in New Orleans and could be served personally at his domicile.
On the other hand, on the part of the appellants, Ella Levy et al., Lythe, the deputy sheriff, deposes that all effort to find Herman Levy at his domicile, No. 2426 Magazine street, proved unavailing; that he was then directed to serve it at his place of business, Levy, Loeb & Co., on Canal street; that, upon calling at that place, he was informed by one, apparently in authority, that Levy was absent from the State and was then in Europe. The affidavit of the other deputy also sets out that he failed to find the appellee after diligent inquiry, and that domiciliary service, for the reason stated, was not possible.
The appeal must be taken within the twelve months after the date of the judgment. The order of appeal was obtained and the appeal bond was given within the twelve months,.and the transcript was filed before the return day.
Appellee, for a dismissal of the appeal, urges in.the first place that citation of appeal must be served on the appellee personally, or at his [579]*579domicile, when he resides in Louisiana, and on the appellee’s advocate, when he resides out of the State. ,
True, as urged by the appellee, that citation of appeal must be served on the appellee personally or at his domicile, when he resides in the State, but it does not always follow'that the appeal must be dismissed in all cases of failure to comply with the law’s requirements. The failure or inability of the sheriff to make the service of citation or an irregular service of citation of appeal may render it proper apd legal to order another citation to issue and service to be made.
The contention of the appellee, for the dismissal is, that he was in the State, and that, in consequence, service should not have been made upon his attorney. The appellee may have been present; none the less, he could not be found, although diligent search was made for him by the deputies. It was equally impossible to make a service at doimcile, for the reasons stated in the affidavit of these officers. A service made upon the attorney, under these circumstances, although not an entirely legal service, is not absolutely void.
In Marshall vs. Watrigant, 13th Ann. 619, the appellee had not been cited at all. Service was made on the attorney and sustained, on the ground that as the appellees had removed from the jurisdiction of the court in violation of law, appellant was not obliged to search for her beyond that jurisdiction, and that service upon her counsel was as good as if the appellee had departed from the State.
We take it, in the case before us for decision, that due search was made for this appellee and that he could not be found. It was the duty of the sheriff to serve the citation and make his return. He exercised his best endeavors to execute the duty, and failed, because the appellee could not be found. It was never within the law’s contemplation that appellees should ‘be benefited because of the sheriff’s inability to find them or a domicile at which to make service upon them. The alternative in such a ease, service on the attorney, may not be complete and sufficient and yet be complete enough for the appellant to bring up his appeal.
It must be borne in mind that the irregularity is due to the appellee himself, who could not be found, and who had no domicile at which service could have been made. It wias not an irregularity for which the sheriff or the appellant could be held responsible. It would-be different if the sheriff had made passing inquiry for the appellee which had not resulted in his finding him and had then called at the office of his [580]*580attorney and served citation of appeal upon the attorney. There was, as we -take it, diligent inquiry made and it became thoroughly well known to the sheriff’s department that no service could be made as required by the -rules. It was only after this was well understood that service was made as before stated.0
As to the objection that citation of appeal was served on the attorney after the twelve months had elapsed after the date of the judgment, we will remark that it has been held that this also is not sufficient to dismiss the appeal when it does not appear that the delay is imputable to the appellant and when the service is made a sufficient number of days to 'be in time before the return day.
In John Lewis vs. D. N. Hennen, 13th Ann. 259, the court said that the appeal had been regularly taken and the bond was given in due form. The first citation was not served because of the absence of the appellee. It did not appear that the defect, error, or irregularity was imputable to the 'appellant; and, furthermore, it is no objection to the service of the new citation that more than twelve months had elapsed since the judgment of the lower court had been rendered. The proceedings required of the appellant had all been filed in due time and the court said that the “ rest is cured by the statute.” This was affirmed in Jones vs. Weeks, 14th Ann. 698, in which it was held that an irregular service of citation may be cured after the twelve months have elapsed since the judgment of the lower court was rendered.
Although the point was not raised in Murphy vs. Factors’ and Traders’ Ins. Co., 33rd Ann. 455, yet it must have been evident to all concerned, as well as to the court, that the twelve months from the date of the judgment appealed from had elapsed when- a second service was ordered. The rule met with this court’s approval in Cockerham vs. Bosley, 52nd Ann. 65.
After citing another decision, we will bring our own to a close. In Broussard vs. Broussard, 2nd Ann. 769, the plaintiff alleged that she had not been cited at all. This, the court held, was not sufficient to authorize the dismissal of the appeal, that it is the duty of the clerk to issue, and of the sheriff to serve, the citation ¡and make his return. No failure of these officers to do their duty can deprive parties of their right to be heard on appeal, but such néglect authorizes the granting of further time for citing the appellee.
It'follows that the same rule should apply when the failure is not due to the officers, but to the fact that'the appellee, after diligent search. [581]*581could nowhere be found, and had no domicile at which to make a domiciliary service. Hibernia National Bank vs. Sarah Planting and Defining Co. (not yet reported). The motion to dismiss is denied.
It is therefore ordered that the cause be continued until thé first Monday of January next in order that the appellee be cited to answer the appeal taken in this case.
On Motion to Dismiss the Appeal.
This is the. second motion by appellee to dismiss the appeal on the ground that he, as appellee, has not been properly cited to answer the appeal. It occurs to us that our first decree sustaining the appeal covers the objection raised in the second motion to dismiss. In the first motion, plaintiff and appellee averred that there was no legal service of citation of appeal; that he has lived in the city of New Orleans since his birth, and that his domicile was on Magazine street at the number stated. The court, in denying this first motion to dismiss the appeal, found that the sheriff had endeavored to make a legal service, but, owing -to his inability to find plaintiff and appellant, he was unable to make a service either on the appellee personally or at his domicile, and that he had, after having advised with defendants and appellants’ counsel, made service of the citation of appeal by leaving it with counsel for plaintiff and appellee at his office.
The question was considered by us and we, for reasons stated in our first opinion, ordered another service to be made. The service has been made as required, and it is therefore no longer possible to return to a consideration of the first ground decided.
The second motion to dismiss the appeal is overruled.