Whitehead v. Brigham

1 La. Ann. 317

• Court: Supreme Court of Louisiana
• Decided: October 15, 1846
• Status: Published

Opinion

The judgment of the court was pronounced by

McGuire and B.ay, for the plaintiff. Purvis, for the appellant.

Eustis, C. J.

Before the jury was impaneled in this case the court appointed W- H. Coats to act in the place of the sheriff, Brigham, during the trial, on the ground of the interest of that officer, who was one of the defendants, and of the absence of the coroner from the parish. The court below held itself authorized to make this appointment, by virtue of the act of 12th March, 1838. Acts of 1838, p. 84. That act relates to the service of process only, in cases in which the sheriff may be disqualified to act by reason of interest or, otherwise, and there is no coroner in office, or the coroner is interested in the suit or process to be served. It does not extend to the case 'under consideration.

It is the duty of the sheriff to attend the trial of causes in person, or by lawful deputy. When he is interested in a cause, his duties are to be discharged by the coroner. Code of Pract., art. 772. The appointment of the person to perform the duties of sheriff during the trial of this cause, was not lawful. The defendant, Brigham, was entitled to a trial by jury in the usual form of law. He has been deprived of it, and we have no power to refuse him the privilege, which he insists upon at our hands. The question has been properly brought before us by a bill of exceptions, taken to the appointment made by the court. The verdict cannot stand, and must be set aside. The judgment of the court below is therefore annulled, and the case remanded to the District Court of the twelfth district, for further proceedings, the appellee paying the costs of the appeal.