Kendrick's Heirs v. Kendrick, 19 La. 36

Kendrick's Heirs v. Kendrick

19 La. 36 | La. | 1841

Martin, J.

delivered the opinion of the court.

This is an action of partition against the widow in-community of the ancestor of the plaintiffs ; and they are appellants from a judgment sustaining the defendant’s exceptions and dismissing the suit.

The exceptions are, first to the citation and return thereon, because it does not appear in what parish the sheriff acts, or where the domicil or house inhabited by the defendant is situated ; and inasmuch as the defendant does not reside in the place where the court is held, or within ten miles, the citation does not express the delay to which the party is entitled in order to comply with the demand of the petition.

Second. There are several individuals and heirs of the plaintiffs’ ancestor who have an interest in this action and who are not made parties. 1 .

I. In his return the sheriff need not name the parish of which . he is sheriff; a sheriff cannot execute process out of the limits of his parish, and the presumption is, that the sheriff who executes and makes return on process is the legal and proper one, when the contrary is not alleged or shown. J a

II. The Code of Practice, article 189, authorizes the service *38of the citation to he made at the usual domicil or residence of the defendant, if he be absent, on a free person above the ao-o of fourteen and limns there. In the present case the return. should have stated the absence of the defendant from home, an(j that the person with whom the citation was left, was liv-^nS there. That person, though found at the defendant’s resi-¿cnce mio-ht have been a visitor. In the case of a mercantile ° firm, the citation may be left with the clerk at the counting J & house ; and we have held that service on the clerk, elsewhere is bad; Huntstock vs. his creditors, 10 La. Rep. 488. In this case ^le service was made at the proper place, to wit: the domicil of the defendant, but not on a proper person, to wit: ' . . one living there. The law only dispenses with personal service on the defendant when he is absent from home,

peiíseswUhper-sonal service, when (he aeren-dani is absent; but the sheriff’s return of ser-state expressly process the usual domicilor residence with a free person a-years of age, dcfcmlaut'iél^ absent. The citation should state that llie answer is to be filed within ten days after service, allowing one day for every ten miles distance from the residence of the defendant to the clerk’s office. In an action of partition, all the parties interested must he made parties.

U.L The Code of Practice, article 174, sec. 5, requires that ¡¡ t]le cfiatjon must express the number of days given to the defendant to file his answer, according to the distance from his residence to the place where the court is held, to be reckoned from the day when the citation was served.” The citation in this case directs the answer to be filed “ in ten days after service thereof, and according to law.” The article of the Code of Practice, cited above, requires the number of days to be expressed with exactitude, in order to relieve the defendant from the trouble of seeking information and the danger of error. In the present case ten days are staled, hut there is an additional number of days according to the distance from the defendant’s domicil to the clerk’s office, of which no notice is taken, except by the words “ according to law;” which in our opinion are too indefinite, as they do not relieve the defendant from the trouble and danger mentioned. The citation should have stated that the answer was to he filed within, ten days after service, and allowing one day for every ten miles distance from the residence of the defendant to the clerk’s office. '

IV. In an action of partition, all the parties, interested therein, must he made parties. Vide Harrell vs. Harrell et al., 16 La. Rep., 374.

*39II is therefore ordered, adjudged and decreed that the judgment of the Court of Probates be affirmed with costs