Sompeyrac v. Estrada

6 Mart. 722

• Court: Supreme Court of Louisiana
• Decided: September 15, 1820
• Status: Published

Opinion

Mathews, J.

delivered the opinion of the court. In this case, the plaintiff obtained an attachment against the estate of the defendant, and pending the writ of attachment, proceeded, by the ordinary process of a citation, which was served, by leaving a copy with the defendant’s wife. The attachment was quashed by order of the district court, and the plaintiff moved then for judgment by default, in consequence of the service of the citation, which was refused: whereupon he took the present appeal.

West’n District. September 1820.

We have no doubt of the correctness of the judgment of the court a quo, so far as it relates to the question of the attachment: but we believe it erroneous, in refusing to the plaintiff a judgment by default on the service of a citation, which was in all respects regular, independently of the attachment.

It is true the attachment was wrongfully sued out, at a time where the ordinary process of citation could be legally served: but it does not follow, as a necessary consequence that the latter mode of proceeding was irregular and void; as that, which is regular and proper in itself, ought not to be vitiated and annulled by a distinct proceeding, which is found on examination to be illegal and void.

The judge of the district court seems to have founded his opinion, in relation to the irregularity and illegality of the citation, on the belief that the law requires a prayer in the petition for that process, which, on examination, is seen not to be the case. For, according to our construction of the law regulating the practice of courts in civil cases, a plaintiff may obtain a citation of the defendant, without having prayed for it in his petition.

Bullard for the plaintiff, Mills for the defendant,

It is therefore, ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed that the cause be remanded with desertions to the district judge to proceed on the plaintiffs petition and prncess of citation, as in ordinary cases.