State v. Head

22 La. Ann. 54 | La. | 1870

Howe, J.

This case came before us at the term held in Natchitoches, in August last, and was remanded to be proceeded with according to law. See 21 An. p. 550. It now comes up a second time on appeal from a judgment against the defendant.

The exception of the defendant, “ that the petition was not addressed to a competent judge, being addressed to the honorable John L. Lewis, as shown by the attestation of the citation, who was not judge of the Eleventh Judicial District at the time said citation was issued or at the time -the petition was filed,” was properly overruled. The petition was .addressed “to the honorable judge of the Eleventh Judicial Distinct of the State of Louisiana, holding sessions in and for the parish of Bienville.” The address was sufficient; and we fail to perceive how the insertion in the citation of the name of a judge whose title to the officis in dispute could invalidate the petition. The name of a judge forms no part of a citation, and will be regarded as surplusage. C. P. 179; Hemken v. Farmer, 3 Rob. 155; and it certainly can not be held to modify the terms of a petition.

The exception that the residence of the plaintiff and of the defendant is not set forth in the petition, was equally without merit.

In the view we have felt constrained to take of this case, it is unnecessary to pass upon the other exceptions.

The defendant, in his answer, prayed for a trial by jury, but the judge a quo refused to allow the same. In this we think there was error. The act of 1868, No. 156, under which this action was instituted, no where deprives the defendant of the general right to a jury. It is provided by the thirteenth section “that all the cases coming under the provisions of this law may be tried before a judge of the district in chambers, or at a special term called by said judge, on legal notice-being given the parties interested; and if required by either party the judge may order a special jury, to be summoned according to law, to try such case.” We apprehend the meaning of this section to be that the cause may be tried in chambers if neither party asks for a jury, but if a jury be prayed for, it will be necessary, when a speedy trial is desired, and a regular term is not in session, to appoint a special term, and to summon a jury therefor under the power conferred by the last clause of the section.

Por the reasons given, it is ordered that the judgment appealed from bo reversed, and the cause remanded for a new trial, according to law.

Chief Justice Ludeling and Justice Howell absent.