Sparks v. Weatherby

JWorphy, J., delivered the opinion of the court. The defendant, Weatherby, is appellant from a decree, enjoining perpetually the execution of a judgment, and pronouncing its null i iy, on the ground that no citation had been served on defendant in said suit. The record shows, that towards the end of 1836, Sparks, who resided in the parish of Assumption, sold his plantation to J. D. Bibb, and removed with his family to New-Orleans, where he resided upwards of two years; after that time, having rescinded the sale of his plantation, he returned to the parish and fixed his residence there. Weatherby, who had brought suit and obtained a judgment by default against him, while he was living in New-Orleans, then sued out an execution, which was enjoined. The sheriff’s return, states “ that he made service by delivery, on the 27th of January, 1837, of a copy of the petition and citation, at the usual domicil of defendant, to €. W. Bibb, a free white person, apparently above the age of fourteen years.” When there has been no personal service or a citation, its want can be supplied only by pursuing strictly the provisions of law which substitute for it any other species of service: the Code of Practice, art. 189, requires “ that service must be made, by leaving copies of the citation and petition at the usual place of domicil or residence of the defendant, if he be r . ^ absent, by delivering them to a free person, apparently above the age of fourteen years, living in the house.” In this case, the evidence shows that Sparks no longer resided at the place mentioned as his usual place of domicil; another family occupied the house, and, at that time, nothing indicated that he would ever return to it. The expressions in the obove arti1 cle, evidently contemplate a temporary absence; and the provision itself, is based on the presumption that the party sued will receive intelligence, from citation being made, where he usually resides. But there is another defect in this return. It does not show, that the person in whose hands the citation was placed, was living in the house ; this would be [596] fatal, even if the place was that of the usual abode of the defendant ; for the person entrusted with l he writ, might happen to be an entire stranger, accidentally in the house, and likely to have no communication with the defendant. When from certain facts the law implies notice in judicial proceedings, they must all concur, in order to establish such constructive notice. It is, therefore, ordered, that the judgment of the District Court be affirmed, with costs.