14 La. Ann. 866 | La. | 1859
Plaintiff sues to annul a judgment on two grounds : first, because he was never cited; and second, because the attorney who appeared for him and defended the suit, was not authorized by him. The injunction obtained by plaintiff against the execution of the judgment was dissolved, and he has appealed.
It appears that Charles E. Alter, in 185V, sued fosé Salé for a bill of groceries, and alleged that at the date of the sale, José Salé transacted a commercial business with John Ridge, as a silent partner, and was liable with Salé for the bill, and asked for judgment against both. Alter obtained judgment, but by consent it was set aside, and a new trial granted.
Alter then filed a supplemental petition, in which he alleged that Thomas Ridge, a brother of the said John Ridge, was also a partner with Salé at the time the articles in the bill were sold. There was judgment in solido against Salé and Thomas Ridge.
An execution having issued, it was arrested by the injunction sued out by Thomas Ridge, in the present case.
I. The return on the citation to Thomas Ridge, is as follows :
“ Received, May 5th, 1857, and on the 6th day of the same month and year, served copy of citation and original, with supplemental petition, on Mr. Thomas Ridge, through his brother, John Ridge, and who accepting personal service for his brother, Thomas Ridge, and he being [***] at the time of service.
“ William Albert, Deputy Sheriff.”
[Between “ being” and “ at” in the return, there is a clerical omission ]
There is no proof that John Ridge was authorized to accept service for Thomas Ridge.
Thomas Ridge has annexed to his petition of injunction his oath, that he was never cited, and never authorized any attorney to defend him in the suit.
The service on John Ridge, considered as a Clerk, is not good, because Thomas Ridge is sued as a silent partner, and firms alone can be cited in that manner. C. P. 198 ; 1 An. 146.
II. Mr. Elliot, the attorney who filed the answer for Thomas Ridge, states, that John Ridge handed him the petition, and said it was at the request of his brother, Thomas Ridge, and Judge Beecher also informed him that Thomas Ridge wanted him (Elliot) to attend to the suit with him.
There is no proof that Thomas Ridge ever directly employed Mr. Elliot, and he has denied it under oath.
There is no doubt that Mr. Elliot considered himself justified, under the circumstances, in filing the answer, but this case shows the necessity of a personal authorization by the party, before an attorney appears for him.
As there is no legal proof of authorization of the attorney, and as the citation is void, the judgment must be reversed.
It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, that the judgment pi Charles E. Alter against plaintiff, signed in December, 1857, in the Sixth District Court of New Orleans, be decreed to be null and void ; and the Sheriff of the parish of Orleans, and Said C. E. Alter, are perpetually enjoined from executing said judgment against Thomas Ridge. It is further ordered and decreed, that C. E. Alter pay the costs of both courts in the present suit.