St. Louis Jewelry Co. v. Imbraguglio

48 So. 1007, 123 La. 389, 1909 La. LEXIS 716

Opinion

PROVOSTY, J.

Defendant appealed from a judgment by default, relying upon the defectiveness of the sheriff’s return on the citation. The return is on the back of the citation, under the printed heading, “Personal Service.” It reads:

“On the 1st day of July, A. D. 1908, I made service of the copies of petition and citation above mentioned, by delivering them to - in person.

“[Signed] W. K. Pearce, Dy. Sheriff.”

This return fails to show service on defendant, since nothing can be presumed with respect to. citation. The Court of Appeal so found, and remanded the case to afford an opportunity for correcting the return. This was proper. The service may have been good, and a faulty return may be corrected. But the court did not set aside the judgment thus, for all that appears, rendered without citation. In this it erred. Adams v. Basile, 35 La. Ann. 101.

It is therefore ordered, adjudged, and decreed that the judgments of the Court of Appeal and the district court in this case be set aside, and that this case be remanded to the district court; plaintiff to pay all costs, except those incurred before entry of default, and the latter costs to abide result of suit.