22 La. Ann. 245 | La. | 1870
This suit was commenced by injunction to prevent the execution of a writ of fieri facias, issiied under a judgment rendered against the plaintiffs as sureties on the official bond of Charles Bienvenu, late sheriff of Orleans.
The plaintiffs allege that the proceedings against them by rule was unauthorized by law; that they were not parties to the suit of Charles Hugh v. Bienvenu, sheriff; that they were never cited; that they never filed an answer or joined issue in said suit, and that the judgment against them is a nullity.
The evidence in the record sustains these allegations.
The right to proceed by rule is confined to incidental matters, which may arise in the course of a suit, except in cases where a summary proceeding is expressly allowed by law. The law has not given this-remedy against sureties on a sheriff’s bond. The want ol citation is fatal, since they did not answer or otherwise waive citation. 14 An. 890 ; 1 N. S. 9 ; 8 N. S. 145 ; 6 La. 577 ;' 2 An. 403; 13 An. 150, 374; 1 R. 30.
It is, therefore, ordered and adjudged that the judgment of the, district court be affirmed, with costs of appeal.