12 La. 547 | La. | 1838
delivered the opinion of the court.
The defendants, John Briscoe and Wm. Nevills, bail of M. Johnson, are appellants from a final judgment on then-bond. They pleaded, first, that notice of the judgment nisi issued prematurely, not being signed by the judge of the court, or certified by the clerk according to law.
2. That it was not legally served, the sheriff having failed to name the person upon whom it was served, or that he served it at defendant’s domicil.
3. No service could be legal, unless served upon him in person, or upon a person appointed bj'’ the court, in conformity to the act of 1835.
. I. The judgment nisi did not require the signature of the judge, which is only required in final judgments. The allegation that the copy of the judgment and bond, was not certified by the clerk, is absolutely gratuitous, and unsupported by proof; for the sheriff has attested, that he delivered a true certified copy of the judgment, and the bond annexed.
II. The sheriff’s return shows, that certified copies of the judgment and bond, was served personally on the defendant, Nevills, and therefore, legally; so that as to him the plea fails. The sheriff’s return, also shows, that as to the defendant, Briscoe, certified copies were left with a free person, above 14 years of age, residing at his domicil.
The Code of Practice is silent as to the manner which notices in cases like the present, are to be served; and the act of 1835, under which these proceedings were had, is also silent in this respect. Service on a person residing at the domicil of a party, found in the street, or at any other place than the domicil, is, in our opinion, irregular. The return in the present case, does not show that the copies were left at the domicil of the defendant, Briscoe.
In the case of Huntstock vs. His Creditors, 10 Louisiana Reports, 488, the sheriff returned, that-he had left the citation with the clerk of one of the parties. We held that this was irregular, because it did not appear that he had done so at the defendant’s domicil, or counting-house.
The exception to the service on the defendant, Briscoe, is, therefore, sustained.
It-becomes necessary in regard to the defendant, Nevills, to examine an assignment of error, to wit: “that the court at the June term, 1837, should not have rendered final judgment, because the judgment nisi was entered-at the June term, 1836, twelve months before, and that the December term, 1836, was the next term of said court, as established by law; 'and that, the act of the legislature, approved 2d April, 1835, relative to recoveries on bail bonds, directs that the judgment mm shall be made final on the second day of the next regular term of the court, or during the term.”
This assignment presents the naked question, whether the state is precluded from making proof of the service, and having the judgment nisi made final by the adjournment of the court, at the end of the term which followed that on which the judgment nisi was taken 1
The reason to decide this question in the affirmative, is, that the defendant has the right of showing why the judgment nisi should not be made final, and is not bound to exercise it until the slate shall have proved a regular service on him; and having failed to do so during the term, as stated in the act, the state is presumed to have abandoned the prosecution.
The reason to decide in the negative, is, that the words of the act are merely directory as to the time of making the judgment nisi final, and there is no prohibition against this being done at a subsequent-term.
Perhaps the defendant should have shown, that as the judgment nisi was taken in June, 1836, and not made final until the June term, 1837, there was a session of the District Court intervening in December, 1836; for, if the court failed at the latter term, the June term following was regu-
Upon the whole, we conclude, that the judgment nisi was properly made final at the June term, 1837.
A bill of exception was taken to the opinion of the court, refusing to assign the cause for trial on a particular day.
It does not appear to us that the court erred. On a motion to make a judgment final, the proceedings are summary, but the party may obtain a continuance on any legal ground. This does not appear to have been asked in the present case.
Lastly, it was urged that the act of 1835, authorizing the proceedings on which the judgment in this case was obtained, was repealed after the judgment nisi was taken, but before it was made final, and that the repeal disabled the court from making it so.
It is true, that when an act creating an offence is repealed, even after judgment in the inferior court, the judgment must be reversed, if it has not been affirmed before the repeal. The reason of this is, that a legislative pardon,is presumed to have been intended. It is otherwise when the remedy only is changed.
It is, therefore, ordered, adjudged, and decreed, that the judgment of the District Court, be annulled, avoided and reversed, so far as it relates to the defendant, Briscoe ; and that so far as it relates to the defendant, Nevills, that it be affirmed with costs.
