Solomon v. Heyward

Louisiana Court of Appeal

Solomon v. Heyward

559 So. 2d 147, 1990 La. App. LEXIS 653, 1990 WL 31978

CourtLouisiana Court of Appeal

DecidedMarch 14, 1990

DocketNo. 89-CA-665

StatusPublished

This text of 559 So. 2d 147 (Solomon v. Heyward) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Solomon v. Heyward, 559 So. 2d 147, 1990 La. App. LEXIS 653, 1990 WL 31978 (La. Ct. App. 1990).

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Opinion

GOTHARD, Judge.

This appeal is from a default judgment in a suit on a promissory note.

The plaintiff, Mark D. Solomon, confirmed a preliminary default against Craig Heyward on June 22, 1989, in the amount of $15,000 plus interest from September, 1988 until paid, plus 10% attorney’s fees and costs. After his motion for new trial was denied, the defendant filed a suspen-sive appeal.

The appellant raises as issues whether service of citation was sufficient and valid to confirm a default judgment and whether the trial court erred in denying his motion for new trial.

The citation is directed to Craig Heyward at 6928 Saints Avenue, Metairie, which is the address of the Saints practice field.¹ The sheriff’s return recites that the citation was served “on Craig Heyward thru Jim Miller, herein named in person, ...” Under La.C.C.P. art. 1232, personal service requires tender of the citation “to the person to be served.” The service does not satisfy the requirements for domiciliary service, La.C.C.P. art. 1234, as the citation was not left at his home with a person of suitable age and discretion who resided there. We find, therefore, that the defendant was not served at all.

Citation and service thereof are essential in all civil actions except summary and executory proceedings. Without service the proceeding is absolutely null. Peschier v. Peschier, 419 So.2d 923 (La.1982); Lewis v. Macke Bldg. Services, Inc., 524 So.2d 16 (La.App. 5th Cir.1988), writ denied 532 So.2d 131 (La.1988).

For the reasons assigned above, we set aside the judgment appealed from and remand for further proceedings consistent with this judgment.

JUDGMENT SET ASIDE, CASE REMANDED.

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GOTHARD, Judge.

This appeal is from a default judgment in a suit on a promissory note.

The plaintiff, Mark D. Solomon, confirmed a preliminary default against Craig Heyward on June 22, 1989, in the amount of $15,000 plus interest from September, 1988 until paid, plus 10% attorney’s fees and costs. After his motion for new trial was denied, the defendant filed a suspen-sive appeal.

The appellant raises as issues whether service of citation was sufficient and valid to confirm a default judgment and whether the trial court erred in denying his motion for new trial.

The citation is directed to Craig Heyward at 6928 Saints Avenue, Metairie, which is the address of the Saints practice field.¹ The sheriff’s return recites that the citation was served “on Craig Heyward thru Jim Miller, herein named in person, ...” Under La.C.C.P. art. 1232, personal service requires tender of the citation “to the person to be served.” The service does not satisfy the requirements for domiciliary service, La.C.C.P. art. 1234, as the citation was not left at his home with a person of suitable age and discretion who resided there. We find, therefore, that the defendant was not served at all.

Citation and service thereof are essential in all civil actions except summary and executory proceedings. Without service the proceeding is absolutely null. Peschier v. Peschier, 419 So.2d 923 (La.1982); Lewis v. Macke Bldg. Services, Inc., 524 So.2d 16 (La.App. 5th Cir.1988), writ denied 532 So.2d 131 (La.1988).

For the reasons assigned above, we set aside the judgment appealed from and remand for further proceedings consistent with this judgment.

JUDGMENT SET ASIDE, CASE REMANDED.

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Bluebook (online)

559 So. 2d 147, 1990 La. App. LEXIS 653, 1990 WL 31978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/solomon-v-heyward-lactapp-1990.

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