Garsaud v. Mandeville Light & Ice Co.

MONROE, C. J. Plaintiff, having been appointed receiver of the defendant company, filed an account, which was opposed by R. S. Vivian claiming to be a creditor of the company, as a holder of certain of its bonds, and, his opposition having been dismissed, he took a devolutive appeal by means of a petition in which he prayed “for service and citation on Octave Garsaud, receiver, and all parties in interest,” and obtained an order fixing the amount- of the bond and otherwise in accordance with his prayer, after which he filed the required bond, and on August 15, 1917, lodged the transcript in this court. On April 4, 1918 (within four days of that upon which the case was fixed for argument), plaintiff (receiver and appellee) filed an “exception,” in which he alleges that “the citation of appeal served on Octave Garsaud is defective- — that the same should be addressed to him as receiver”; and that the creditors mentioned in the account and ordered to be paid should have been cited and made- parties to the appeal. He therefore prays that [565] the appeal be dismissed. The opponent (and appellant), alleging that he was unaware that all the necessary parties had not been cited, moves that the case be remanded in order that the omission in that respect may be supplied; and though it is unnecessary to remand the case, we are of opinion that he is entitled to relief, since it does not appear that he is to blame for the failure of the clerk to issue, or of the sheriff to serve the citations as prayed for by him, nor can it be said that he is to blame for not having discovered until the appellee filed his rather belated “exception” that those functions had not been discharged, since rule 1, § 8 (67 South. vii),1 of this court declares that “in the absence of instructions from litigants, citations and returns, writs,” etc., “shall be omitted from the transcripts.” Cockerham v. Bosley, 52 La. Ann. 65, 26 South. 814; Bank v. Planting, etc., Co., 107 La. 652, 31 South. 1031; Gagneaux v. Desonier, 109 La. 460, 33 South. 561. The motion to dismiss is therefore denied; and it is ordered that further proceedings in this case be suspended until the first Monday in October, 1918, in order that appellant be afforded a reasonable opportunity to cite the necessary parties. 136 La. viii.