Bryan's Administrator v. Spruell

16 La. 313 | La. | 1840

Simon, J.,

delivered the opinion of the court.

in alt cases of judgments by default made final, the plaintiff must prove his demand; and not having done so the judgment will be reversed, and the case reraanded-

The defendant, sued on a promissory note, is appellant from judgment by default rendered against him, and assigns as errors apparent on the face of the record :

1st. That the return of . the sheriff does not show that the service of the citation was made at the usual place of residence of the defendan t, but simply at his domicil.

2d. That it does not appear from the record that the copies pretended to have been served on the defendant, were certified copies under the seal of the court.

3d. That the judgment by default was entered on the first day of the term of the court, and was therefore premature.

4th. That the default was made final before the expiration of the three judicial days required by law.

5th. That said default was made final, without plaintiff having adduced any proof of his demand.

I. The service of the citation made at the defendant’s domicil, with a free white person, living in his house, who, on inquiry, declared herself to be his wife, &c., is certainly sufficient; the domicil of a citizen is where he has his principal establishment, and his- principal establishment is that in which he makes his habitual residence. Louisiana Code, article 42.

II. It is true, the seal of the court does not appear on the citation copied in the record ; but non constat, that it was not affixed to the original citation, and we are bound to presume that the clerk did his duty.

III. The judgment by default was taken prematurely; the defendant had the whole of the first day of the term to file his answer. Code of Practice, articles 317-18.

IV. It does not appear from the record that three judicial days had elapsed when the default was made final, nor does the transcript show when it was made definitive. Code of Practice, article 312.

V. In all cases of judgments by default, plaintiff must prove his demand, Code of Practice, 312 ; and although the defendant is presumed, by his silence, to have c onfessed the justice of his adversary’s demand, the plaintiff must proceed .... .. . , b. -, with his proof, m order to have the judgment confirmed. Code of Practice, article, 360. In this case, the clerk certifies that the record contains all the evidence adduced by the parties, and we have looked in vain for any evidence establishing the plaintiff’s demand. The district judge ought to have required satisfactory proof of the defendant’s ordinary mark on the note sued on, and having not done so, his judgment must be reversed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; that the judgment by default, taken in this case, be set aside, and that this suit be remanded and reinstated on the docket of the lower court, to be proceeded in according to law ; the appellee paying costs in this suit.