Zacharie v. Richards

Supreme Court of Louisiana

Zacharie v. Richards

6 Mart. (N.S.) 467

DecidedFebruary 15, 1828

StatusPublished

This text of 6 Mart. (N.S.) 467 (Zacharie v. Richards) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Zacharie v. Richards, 6 Mart. (N.S.) 467 (La. 1828).

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Opinion

Matthews, J.

delivered the opinion of the court. This cause was heard in the court below, on exceptions taken by the counsel for the defendant in relation to the service of the citation, which was held to have been illegally made, and the suit was ordered to.be dismissed.ed From the judgment of dismissal the plaintiff appealed.

It appears by the evidence in this case, that die defendant resided in New-Orleans some time previous to the institution of this suit; and that he,was a merchant, became bankrupt, and was not to be found in the eity when citation issued in the present action. While he remained here, ho lived with one Chas. Clark, as a boarder, in Jeffersomstreet, Clark removed to [468]*468Conde-street after the defendant had left the ei* ' iy, and the citation was left at the house of the wjtness ¡n ⅛⅛ latter place of residence, when defendant never lived with him.

This latter place was not at any time the do-micil of the defendant, and the service of citation there was clearly illegal. If the defendant was ever domiciliated in New-Orleans, his do-micil must have been in that house where he eat and slept, or in that where he carried on his mercantile affairs. According to the provisions of the Lou. code, a change of domicil ought regularly to be declared by a person intending to make such change. See articles 43d &, 44th; and in case this declaration is not made, the proof of the intention to change shall depend on circumstances, art. 45. Now it appears to us that circumstances more calculated to induce a person to change his domicil, could scarcely be imagined, than those in which the defendant found himself after his failure, which* appears to have been entire and complete, accompanied by a charge of forgery made against him in relation to his bilan.

The circumstance of the defendant appearing before a commissioner in Philadelphia (who had been appointed to examine witnes[469]*469ses,j and filing cross interrogatories, does not V ° . cure the illegality of service of the citation. No issue had been joined either express or tacit— , -ti n i • • • the action had no foundation inconsequence' of the want of citation. See code prac. art. 359. In truth the defendant never appeared in court to plead to the merits of the case, and thereby join issue with the plaintiff, which perhaps alone could cure the defect in serving the eitation.

Strawbridge for the plaintiff, Maijbin for the defendant.

It is therefore ordered, &c. that the judgment of the district court be affirmed with costs.

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Matthews, J.

delivered the opinion of the court. This cause was heard in the court below, on exceptions taken by the counsel for the defendant in relation to the service of the citation, which was held to have been illegally made, and the suit was ordered to.be dismissed.ed From the judgment of dismissal the plaintiff appealed.

It appears by the evidence in this case, that die defendant resided in New-Orleans some time previous to the institution of this suit; and that he,was a merchant, became bankrupt, and was not to be found in the eity when citation issued in the present action. While he remained here, ho lived with one Chas. Clark, as a boarder, in Jeffersomstreet, Clark removed to [468]*468Conde-street after the defendant had left the ei* ' iy, and the citation was left at the house of the wjtness ¡n ⅛⅛ latter place of residence, when defendant never lived with him.

This latter place was not at any time the do-micil of the defendant, and the service of citation there was clearly illegal. If the defendant was ever domiciliated in New-Orleans, his do-micil must have been in that house where he eat and slept, or in that where he carried on his mercantile affairs. According to the provisions of the Lou. code, a change of domicil ought regularly to be declared by a person intending to make such change. See articles 43d &, 44th; and in case this declaration is not made, the proof of the intention to change shall depend on circumstances, art. 45. Now it appears to us that circumstances more calculated to induce a person to change his domicil, could scarcely be imagined, than those in which the defendant found himself after his failure, which* appears to have been entire and complete, accompanied by a charge of forgery made against him in relation to his bilan.

The circumstance of the defendant appearing before a commissioner in Philadelphia (who had been appointed to examine witnes[469]*469ses,j and filing cross interrogatories, does not V ° . cure the illegality of service of the citation. No issue had been joined either express or tacit— , -ti n i • • • the action had no foundation inconsequence' of the want of citation. See code prac. art. 359. In truth the defendant never appeared in court to plead to the merits of the case, and thereby join issue with the plaintiff, which perhaps alone could cure the defect in serving the eitation.

Strawbridge for the plaintiff, Maijbin for the defendant.

It is therefore ordered, &c. that the judgment of the district court be affirmed with costs.

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6 Mart. (N.S.) 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zacharie-v-richards-la-1828.