Ratliff v. His Creditors

Martin, /., delivered the opinion of the court. The dismissal of the appeal is prayed for on account of irregularity in the service of citation, which was made on the attorney of the appellees, Rhodes & Peters. The sheriff having returned on the first citation, that, the appellees were not found in his parish, tiie appellant obtained the judge’s order for an alias citation to be served on the attorney, which was accordingly done. It is urged, that one of these appellees, at the time of the service made on the attorney, resided in the city of New-Qrleans, the sheriff of which made the return of “ not found,” and that the other one was dead. The Code of Practice, article 582, requires service of citation of appeal to be made on the appellee, “ if he resides within the state, or on his advocate'if he do not.” There is on evidence before us that the appellees resided out of the state at the time of the service. They are stated in the proceedings, as residing in the city of New-Orleans. The return of tire sheriff, on the first citation, does not state that they had ceased to reside there. It states only that they were not to be found. There was no necessity for a personal service, and the citation might have been left at the place of their usual domicil, which does not appear to have been changed. The appeal having been granted, the district judge had the case no longer under his control, and could give no order as to the mode of serving the citation. Under a law passed at the last session of the legislature, approved March 20th, 1839, an appeal is not to be dismissed on account of any irregularity in the citation or service thereof, whenever such irregularity is not to be imputed to the appellant. In this case, it is clearly imputable to the counsel of the appellant, whose act is that of the client. It does not appear to us that we are authorized to give any relief. The appeal must, therefore, be dismissed, with costs.