45 La. Ann. 346 | La. | 1893
The opinion of the conrt was delivered by
This is an appeal taken by plaintiff from a judgment dissolving an attachment.
The grounds of the motion to dissolve are, first, that the attachment issued without legal bond, and, second, that neither the peti
1. The attachment bond is not given for any named sum of money. It recites that “ Lehman, Stern & Co., as principal, and P. Gerac, as surety, acknowledge to owe A. M. Martin, or his successors in office, clerk of the Twenty-fifth Judicial District Court, the full sum-for the payment of which, well and truly to be made, we hereby bind ourselves,” etc.
This is not the bond required by the statute, which provides that ‘ ‘ a creditor, or his agent, praying such attachment, must, besides, annex to his petition his obligation in favor of the clerk for a sum equal to that which he claims, with the surety of one good and solvent person,” etc. Act No. 17 of 1880.
It has been so often held that attachments are strieti juris and can only issue in the particular cases provided by law, and that all formalities and requirements prescribed must be strictly complied with under pain of nullity, that a reference to the digest is a sufficient citation of authority. 1 Hennen’s Dig., p. 120.
It has been repeatedly held that where the bond is for an amount less than that prescribed by law the attachment falls. Thus this court set aside an attachment where the bond for $5000 was only $57 less than the required amount, saying “ those who invoke process of this kind have been uniformly required to fulfil the minutest requirement.” Yale vs. Cole, 31 An. 687.
The same course was pursued in another case where, referring to the bond, the court said: “This prerequisite must be strictly construed and rigidly enforced. The remedy by attachment is" an extraordinary one; dispossessing the party of his property before his indebtedness is judicially ascertained, upon the ex parte showing of his adversary. Hence it has been repeatedly held that the legal prerequisites must be fully complied with under pain of nullity.’! Planters’ Bank vs. Byrne, 3 An. 687; see also Graham vs. Buckhalter, 2 An. 415; Williams vs. Barrow, 3 La. 57.
It is impossible to hold that, though a bond for less than the amount required is fatally defective, a bond for no amount whatever can stand. We can not apply the principle that “ judicial bonds must be tested by the law directing them to be taken; that which is superadded must be rejected and that which is omitted supplied.” This rule has been applied to added or omitted conditions in bail
It has also been applied in the case of injunction bonds. Mason vs. Fuller, 12 An. 68; Eysralenne vs. Bank, 3 An. 663; Breedlove vs. Johnston, 2 N. S. 517.
These, however, were eases in which, the injunction having taken effect, the question arose on the liability of the security on the bond. Moreover, injunction is an equitable remedy and is not subject to the same strictness as attachments.
The rule has never been applied in cases involving the validity of attachments taken out on such insufficient bonds. The question here is, not whether the surety on such bond might be held liable eventually, but whether the precedent conditions prescribed by law, and without which the attachment can not stand, have been complied with. Obviously they have not. The law requires a bond for a specified amount. The requirement is to be strictly construed and rigidly enforced. A bond for a less amount is fatal. A priori a bond for no amount at all is equally so. The bond required by law was not furnished. It is not to be eked out by presumptions and implications.
The same reasons repel the attempt to cure the deficiency by reference to the affidavit of the surety. The law requires the amount to be specified in the bond, not in an affidavit separately filed.
2. The judge rested his decision on the insufficiency of the service of the citations, petitions and order of attachment.
The law imperatively requires such service as a condition precedent to seizure. C. P., Arts. 251, 253, 256; Putnam vs. Banking Company, 3 Rob. 232.
There was no timely legal service in this case.
The return on the citation is as follows:
“ Received this original, together with certified copies of supplementary petitions and citations, on the 26th day of January, A. D. 1891, * * * and service was duly made on Mrs. M. A. Broussard and to her husband, J. Bonnemaison, at their domicil, because, on inquiry from Dominique Bonnemaison, as to the whereabouts of Mrs. M. A. Broussard, and being informed by him, he being over the*352 age of fourteen years, and residing with her, that he did not know where she was, she having left the day previous; on inquiry from other parties residing in the house I could obtain no further information, the house being her domicil. Service was made on the 27th day of same month and year; distance, about ten miles from the court house of said parish. Signed, L. G. Breaux, Deputy Sheriff.”
It is radically defective in several respects.
1. It does not state the name of the person on whom service was made, or whether such person’s name was known to him, or how he ascertained his name. C. P., Art. 201; O’Hara vs. Lumber Co., 42 An. 226.
2. Nor does it state that such person resided at the domicil. C. P. 189; Cole vs. Rocha, 21 An. 613; Pilié vs. Kenner, 16 La. 570; Kendrick vs. Kendrick, 19 La. 36; Oakey vs. Drummond, 4 An. 363; Corcoran vs. Riddell, 7 An. 268; Feasel vs. Cooper, 15 An. 462.
The return on the writ of attachment is as follows:
“ Received the within this 26th day of January, 1891, and proceeded on the following day to serve the same, and did so by handing a certified copy of petition and a certified copy of citation and order of attachment, by handing it to Dominique Bonnemaison, a man over the age of 14 years old, in the store owned by Mrs. M. A. Broussard^ seized, and owned by her, he being at the time apparently in charge of the business of said store, and who stated to me, on inquiry, that Mrs. M. A. Broussard had left, and that he did not know her whereabouts; distant, about 10 miles from court house of said parish, hereunto annexed. Signed, L. G. Breaux, Deputy Sheriff.”
This return falls under our ruling in a similar case, in which we said: “This return does not show a domiciliary • service. If the store was kept at the domicil of the defendant, and the person on whom the process was served lived or resided therein, the sheriff should have so stated distinctly, with mention of the apparent age of the person and the source of his knowledge of the circumstances attending the service.” Adams vs. Basile, 35 An. 101.
The judge did not err in holding such defective services to be fatal to the attachment. Putnam vs. Banking Co., 3 Rob. 232 ; Lacey vs. Kinley, 3 La. 17.
He had appeared in the ease by filing his answer to a subpoena duces tecum,, and had joined his wife in a motion for commission to take testimony, filed on the same day that the motion to dissolve was filed.
This is sufficient evidence of his knowledge and authorization. It showed a sufficient appearance of the husband in the suit to confirm the implication of authority resulting from his being joined and cited with her. Stone vs. Tew, 9 Rob. 193; Chiasson vs. Dulplantier, 10 La. 574.
Besides it does not lie in the mouth of plaintiffs to deny the authorization of the husband, because the entire validity of their own proceedings depends thereon.
Judgment affirmed.