Baham v. Stewart Bros. & Co.

Citations

• 109 La. 999
• 34 So. 54
• 1903 La. LEXIS 461

Syllabus

<p>CITATION — VALIDITY — SHERIFF’S RETURN — NULLITY OF JUDGMENT — EVIDENCE—SERVICE OF CITATION — OBJECTIONS—ENTRY OF JUDGMENT.</p> <p>1. The citation in a case must not be confounded with the sheriff’s return upon the citation, which recites his own actions in the matter of the service thereof. The citation may b*e good, though the return for some reasons be irregular, while the return may be perfect in its recitals, yet the citation be null.</p> <p>2. In an action for - nullity of judgment for want of citation, the plaintiff must make his attack by negativing the existence of the acts themselves upon which by law the citation is made to rest. Ho should not simply attack the recitals of the sheriff's return.</p> <p>3. The rule that the acts of the sheriff must be evidenced by his official return, and not by the testimony of third parties who may be cognizant of them, does not exclude, in an action for nullity of judgment, parol testimony taken to support the citation as to collateral facts, not involving the actions of the sheriff, but existing independently of the return, and in regard to which the return was silent. Thus, where the sheriff returns that he has made the service upon the defendant, A. B., by delivering at his residence, six miles from the courthouse, at a certain time, certified copies of the petition and citation to his wife, Mrs. A. B. (A. B. being absent at the time from his residence), parol evidence is admissible to show affirmatively that A. B. had had but one residence, which was that where the service was made; that A. B. was a married man; that his wife was over 14 years of age; and that she resided with him.</p> <p>On Rehearing.</p> <p>4. Where a defendant has had actual service of citation made upon him, but through a citation addressed to him which contained only the initials of his name, he should, if he wishes to object, do so before confirmation of default. He cannot reserve the objection to be used as a ground for an action of nullity