Mihaljevich v. Jurisch

Citations

• 12 Teiss. 240
• 1915 La. App. LEXIS 35

Syllabus

<p>1. The provisions of Act 77 of 1904, amending C. P., 180, to the effect that the delay allowed in the citation shall in no ■event exceed fifteen days, applies to cases only where de-. fendant’s residence is fifty miles or more distant from the Court. Where this limitation is not expressed in the citation the presumption, in the absence of proof to the contrary, is that the defendant resides within and not without the fifty mile radius.</p> <p>2. The object of the requirement of C. P., 185, that the sheriff . shall certify upon the original citation the date when it was received by him, is to fix the time when the duty devolved upon him of fulfilling his obligation to plaintiff with respect to making prompt service. It has no connection with the copy of citation served on defendant and an error in this date cannot affect the validity of the citation or of the service.</p> <p>3. Though there is no evidence in the record, it will be presumed that the trial Court based its judgment upon sufficient evidence. This presumption is not destroyed by the clerk’s recital that the transcript contains all the evidence adduced, since such a recital is beyond the clerk’s authority and the scope of his duties.</p>