12 La. 7 | La. | 1838
delivered the opinion of the court.
The defendant filed three exceptions to the petition and process in this case. 1st. That the style of the court is not properly stated. 2d. That the citation is defective, inasmuch as it does not set forth the name and surname of the defendant, in the manner they are in the petition. 3d. Because the respondent is not correctly named in the petition; that Elisha M. Terrill is the person sued, and yet the sheriff served the citation on Elijah M. Terrill. These exceptions were sustained, the suit dismissed, and the plaintiff appealed.
I and II. The two first exceptions may be disposed of by saying, that in our opinion, the description of the court, as that of the District, for the Eighth Judicial District, without adding the name of the state, was sufficient. All the courts are supposed to know and recognize the political divisions of the state; and that the code does not require the defendant’s name and surname to appear at full length in the citation. . 1 Code of Practice^ 179.
III. The last exception is of the nature of a plea in - abatement and misnomer. As no replication-is permitted, the . -t i! plaintiff is considered as having denied the fact alleged in the exception. No proof was offered to show what was the real ... ' - , . ¶ . Christian name or the defendant, and no opportunity was allowed the plaintiff to amend. We are of opinion, the court erred in sustaining the exception, and that justice required the case should be remanded, in order to give the plaintiff an opportunity to amend, if be thinks proper. Such amend-rr J r r . ments ought to be permitted instanter, and without delay.
But it is further contended on the part of the plaintiff, that the exceptions were irregularly filed, without leave of court, .and after judgment by default.
The code provides, that if, three days after this judgment, the defendant neither appears nor files his answer, 'a definitive judgment will then be given, &c. Code of Practice, article 312.
The appearance and filing an answer, are matters of right at any time before the trial, upon the tacit issue made up between the parties by the judgment by default: and we are not prepared to say that the defendant may not file exceptions by way of appearance and answer, or wholly rely on such exceptions. In this case, it appears, the exceptions r , , . rr , were filed, and consequently known to the plaintiff before the day on which he was entitled to final judgment, on proving his demand.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, the non-suit set aside, and the case reinstated and remanded for further proceedings, according to law; and that the appellee pay the costs of this appeal.
