City of New Orleans v. Heirs of Schmidt

Buchanan, J. The plaintiff having recovered judgment for a sum of over three hundred dollars, for taxes of the year 1852, upon a default entered up upon a newspaper notice, as authorized by the Consolidation ¡let of 1852, p. 52, sec. 85, with privilege upon certain property situated in Royal street, belonging to the heirs of Mrs. Melanie Seghers, the deceased wife of Gusiavus Schmidt, the latter have appealed, and assign for error apparent upon the face of the record, among other matters, that there has been no sufficient legal citation. The citation, according to the provisions of the Act of the Legislature just mentioned, was an advertisement in the official newspáper of the City Council, calling upon defaulting tax-payers to appear within fifteen days in the court in which the tax bills due by them were deposited. In the advertisement in ques- . tion, the only designation of the defendants is, “The Heirs of Schmidt.” This is clearly insufficient. Schmidt is one of the most common names among our population, as the Directory and the bills of mortality, to which we have been referred, abundantly testify. The Legislature have thought fit to give the publication in a newspaper the force and effect of a citation duly served, in order to facilitate the collection of the city taxes; hut it surely did not intend to give it a greater effect than a citation. It is but reasonable to subject it to the same rules as the citation, of which the statute has made it the equivalent. Now a citation addressed to Smith, or Schmidt, would designate no person, male or female, of that numerous patronymic, nowin existence ; neither would a citation to the heirs of Smith, indicate from which of the Smiths, deceased, the parties cited had inherited. It is obvious that a judgment by default, based upon a citation so utterly vague, at least in the absence of personal service ,would be reversed on appeal. Appearance and a joinder of issue, could alone cure this defect in the proceedings. In the present case, there was no appearance; hut a judgment by default having been rendered, and a final decree entered up, in the same vague terms as the citation, notice of that judgment was served upon Mr. Gustavus Schmidt, the appellant. The assignment of error is well taken. It is therefore adjudged and decreed, that the judgment of the District Court he reversed and that this suit be dismissed, the plaintiff and appellee to pay costa in both courts.