41 La. Ann. 37 | La. | 1889
The opinion of the Court was delivered by
The xdaintiff appeals from n judgment dismissing
It appears that the petition was filed December 29, 1888; that citation was served on the same day, on one Pay, stated in the sheriff’s return, to he the secretary of the defendant company; that on the 7th day of January following the defendant made a motion solely for the purpose of obtaining security for costs, under section 4 of Act 136 of 1880; that on the 12th of January next an exception was filed attacking the correctness and charging the nullity of the sheriffs return, on the ground that the person named therein, as that on whom the service of the citation had been made, was not and never has been the secretary of the company, the consecprence being that the sheriff had no authority to make any service on him.
On the trial, the defendant, as plaintiff in exception, offered to introduce evidence to show the falsity of the return; to the admission of which the plaintiff objected, on the ground that by appearing in the case to ask a bond for costs, the defendant had estopped itself from assailing the validity of the citation and of the service thereof; but the court having overruled the objection, the proof was received, and the plaintiff excepted.
I.
It is merely elementary that a citation and service thereof are the foundation of a suit, and that the same cannot be considered as waived, unless by formal renunciation, or by an appearance putting at issue some matter presented by the petition, the object of which is detrimental to the proceeding, or to the -action. The Code of Practice, Article 206, distinctly provides: “ Citation being the essential ground of all' civil “ actions in ordinary proceedings, the neglect of that formality annuls “ radically all proceedings liad, unless the defendant has voluntarily ap- “ peared and answered the demand.” 5 N. S. 429; 4 L. 91; 5 L. 258; 10 E. 140; 1 A. 323; 17 A. 91; 21 A. 27, 438; 230 A. 803; 31 A. 540; 35 A. 130; 38 A. 759.
This is so much so that it has been held that an appearance tor the purpose of setting aside a Writ of arrest, is not such as can he treated as waiving a defective citation. Jacobs vs. Sartorius, 3 A. 9.
In the. present instance, it does not appear that any such appearance was.made l>y the company.
The motion for security for costs is, out of caution, carefully guarded. It distinctly states that the .company appears for the sole purpose of demanding the bond for costs. It is a proceeding necessarily ex parte, a subject, which required no bearing of the plaintiff, as the right of a
It is an appearance which puts at issue none of the matters set forth in the petition, either as to jurisdiction, sufficiency of the cause of action averred, res judicata, prescription, or any other defense, the purpose of which would he to have the cause disposed of, on account of any averment in the petition. Its object is simply to dispense the defendant from making any appearance, or setting up any such defenses, or joining issue on any point, until the requirement for a bond for costs, under the Act of 1880, is complied with.
It is therefore apparent that the mere appearance for the sole purpose of asking the bond for costs, cannot he treated as one, the effect of which was to prevent the defendant in the ease from urging any defense, after the motion for security had heen made and the security asked, furnished and accepted.
The district judge, therefore, decided correctly in overruling the objection to tiie reception of the testimony proposed to impeach the intrinsic correctness of the return.
II.
The evidence adduced, written or oral, conclusively shows, that Mr. Bay, oh whom the service of the petition and citation was made, was not and never had been the secretary of the defendant company.
He says that ho informed the deputy sheriff who made the service, that he was the plionographer and private secretary of Mr. Hutchinson, the president of the defendant company, who was not then in ; that he and the deputy went to the office of the attorneys of the company ; that he handed to one, of them the papers, stating the absence of the president and asking whether he should accept it; that, on being answered no, that lie had no right to take them, lie handed them to the deputy sheriff, telling him t.o serve them on Mr. Hutchinson ; but that the latter would not take them hack ; that he subsequently gave his name to the officer ; that he is positive, he never told the deputy that he was the secretary of the defendant company ; that he never was such secretary ; ape.
The minutes of the hoard of directors of the company of April 5, 1887, offered in evidence, show that, on that day, A. C. Hutchinson was elected president, and John B. Richardson secretary. The latter heard, says that there had heen no change in the officers then elected, between that day and January, 1888.
it is an important feature in tills ease, which militates victoriously in favor of flic correctness of Mr. Eay’s testimony that lie and the deputy went together to the office of the attorneys of the. company, and that there, he was told that lie liad no right to receive the. pajic-rs, nnd that he returned them to tlie sheriff, who declined receiving them.
'Pile information was then and thus brought home clearly to the. officer of the court, in unmistakable language, that Eay was not the proper person oil whom a legal service could be made.
The fact being clearly established that the. service was made on one who had no capacity whatever to represent tlie defendant company, it would serve no useful purpose to follow counsel in the dissertation in which-they have indulged touching the interpretation to be put upon Article 198 (!. J’., and section 12 of the Act of Incorporation of the company, which bears No. 37 of 1877. Tt is enough that the service was made neither under the. provisions of the one nor of those, of the latter, to say that the legal requirement was not observed.
Considering, therefore, that the service of the petition and citation was fatally defective and bad, the exception was properly sustained.
Judgment affirmed.
