Simpson v. Hope, 23 La. Ann. 557

Simpson v. Hope

23 La. Ann. 557 | La. | 1871

Wyly, J.

The plaintiff appeals from the decree dissolving- the injunction sued out by him to restrain the execution of a judgment obtained in the district court of the parish of DeSoto, by Samuel Van''* Bibber, against him, on the ground that there was no citation, and because of the alleged slave consideration of the note on which the judgment was based.

Our attention is directed to the bill of exceptions taken by the plaintiff to the ruling of the court in rejecting- the parol evidence *558offered, by him to prove that said judgment was rendered without citation, and that the return of the sheriff was untrue. We think the court erred. Citation is the foundation of the action, and a judgment without it is an absolute nullity. The district court of the parish of Caddo had jurisdiction to ascertain this fact, notwithstanding the rendition of the judgment by the district court of the parish of DeSoto. It would be unreasonable to require a party against whom judgment, has been rendered without citation, to leave his domicile and to institute proceedings in a court of another jurisdiction in order to avoid the consequences of an absolute nullity. If the plaintiff was never legally before the court of the parish of DeSoto, as he proposes to-prove, and resided at the time in the parish of Caddo, as we infer from the citation and the sheriff’s return, why should he seek that tribunal in order to be released from a proceeding to which he was not a party, and which was an absolute nullity from the beginning.

It is therefore ordered that the judgment herein be annulled, and that the cause be remanded with instruction that the plaintiff be permitted to introduce proof in support of his plea that he was not cited, and was not a party to the judgment sought to be enforced against, him. It is further ordered appellees pay costs of appeal.