KITCHELL

&;

RAMMELSBURG FURNl'1'URE CO. ,. SAMPSON.

805

taxes of municipal corporations a new duty, arising, however, only when certain preliminary action has been taken by the judgment creditor, towit, the service upon him of a copy of the writ of execution. If a copy of such writ be not served as directed by this statute, then the duty to assess the moneys to meet it does not attach to the assessor. If it be served, then. without any action of the legislative body of such corporation, the assessor is bound of his own motion to assess, in addition to regular taxes, a sum sufficient to satisfy the execution. In other words, the act simply provided a new statutory remedy I without disturbing the existing procedure. If this construction of the act be sound, it affords no excuse for the failure of the defendants, the common council of beth, to obey this writ. Besides this, objection is taken too late to be efficacious. Such objection might well be against the granting of a peremptory writ of mandamus, which always depends upon the sound discretion of the court, guided and limited by fixed principles. But a peremptory writ having been granted, disobedience thereof cannot be justified by showing that another course of procedure, preliminary to, the granting of the writ, could have been selected by the relators. In my opinion, the common council has been guilty of disobey!ng this writ, and the motion for attachment as for contempt is granted.

!tfITCHELL

&

RAMMELSBURG FURNITURE

Co.

tl. SAMPSON.

(O£rcuit Oourt, N. D. Florida. December 80, 1889.)

L

PARTIIl!!lRSHIP-'-AcTIONS AGAlNST-LIABILITY,'m SOLIDO.

I;

In Louisiana, in a suit against a commercial partnership, where citation Is Issued, directed and served Oil ,the firm, and aU,order is afterwal'ds made for citation to il\sue to the individual partners, and an answer is :ijled by the defendants, a judgment may ,be rendered in soliqo against the individual partners.

SAME""':SERVICE OF CITATION ON AGENT.

Under Code Prac. La. art. 198, which requires citation in suits against a partnership,to be served on one of the firm in person, or at theirnlace of business, by delivery to their clerk or agent, service cannot be made upon an agent elsewhere than at the firm's place of bUl$iness. '

8.

'"

Under Const. La. 1879, which abolished the several district courts In the parish of Otleans, created one civil district court for said parish, and prOVided: (article 261) that all causes pending in such district courts should ,be transferred to said civil district court, the latter co)lrt has jurisdiction to revive unsatisfied judgments ,rendered in said district courts, since a suit is" pending" until the judgment rendered therein haS been satisfied. ' SA.ME-CI'l'ATION-CURATORAD Hoo, Under, Rev. Civil Code La" art. 8547, which authorizes the revival of judlPIlents upon is,y.ance of citation... and providestha.t if the defendant be absent the, court ma.yappoint a curator aa hoc, upon whom' the citation shall be served, a curator ad hoc may, by answer, acknowledge the service of citation for the revival of a judgment.
BAME.

M

JUDGMENT-REVIVAL-COURTS-JURISDICTION.

rI.

Under l!aid statute,' the revival of a judgment without.the issuance of a oitatton. the acknowledgment of service by the curator ad hoc, is a nullity. ,

At Law.

On demurrer.

f

,

.!. i

Sa,J;llpson· .'; for ()()qper, for

'1;

· PARDEE,

derpurred to, '

,. .

Cqrnpap.yll,gainst ' '

"

fendant,IJI.,cith;en of Florida, on three 'several counta,allegillg as follows:
,!\

J. The plaintiff, a citizen of the state of Ohio, sues the deon

by tbe said Mitchell & Rammelsburg day of 1875, in the district court of qlePfl'ililiof of, Louisiana, again&t the firJ!l ofSampson Bros., Chandler,Samps911 andFrankG. Sampson, in soUdo,fQr the sum seveh: hundred and seventy-eight dollars; ($7,778,) with in(8) per cent.Iler the first day 'Of, January, 1875, untJ't t»t1d, with costs 'Of aut.t. 'PlaIntIff avers that on the 28th dilY of Janu188l>"due,jmlicial were taken to revivEjthe said judgment in .the civil,ll-istrict court city of. New of; Louisiana, and \y6):e, had thereill that plaintiffs obtainflda judgment . orig , '9.gment; all of which by, certified tranreVi y script, dfthe record Of cause, filed herewith. Second;' i1'hat on the 1st , day March, 1875; the commercial firm of' Johnson & Faulkner, then doing in'bhe'state and city of N ewYork.: recovered a judgment in the sixth district court fol' the pariaQ,f}fOrleans, of Louisiana, against the said firm of Sampson Bros., and Chandler C. Sampson and l!'rank G. Sampson, in solido. for the sum of one thousand and four and ninety-five one-hundredths dollars. ($1,004.95,) with interest at the rate of eight (8) per cent. per annum from the first day of January, 1875. until paid, and costs of suit; and plaintiff alleges that afterwards, on the 21st day of May, 1885. by due proceedings in the civiidistJ:tct>courtfor tht) parish of Orleans. in the Louisiana, a judgment of the said court was duly rendered insald cause. revIving the aforesaid original judgment in fay-pr of sai<j. Johnson & Faulkner against the said Sampson Bros;, and said Chandler C. Sampson and Frank G. Sampson, in solido,' and that to-wit, on tQe 28th day of, M;ay, 1889. the said dlllyasaigned to the plaintiff,whereby the plaintiff became jUdgments· the owner of the same; 'and that at the timeof such assignment.the individual mt>lIlbersof said firm·of Johnson & Faulkner of the state of New York. TMrd. That' on the 12th lIay of the firm of Charles &; Bastian, in the fifth district court for the pa,l."ish of Orleans, recovered a jUdgment against Sampson Bros., and Frank G. Sampson and Chandler C. San1pson,in solido, for the sum of three thousand five hundred and fifty-one and seventy-two one-hundredthS dollars. ($8,5$L72,) with eight per cell,t. per on three thousand two hundred,dollars ($3,200) from January I, 1877, and five (5) per cent. tnterE'st OD three hundred and fiftY-OIle and'seveiltJ-two one-hundredths doH aI'S, ($351.72) from January I, 1877, untilpi!.id, 8Iidcosts Of. slltt; that afterwards, on Aprjl 27,1877, by certain judiclalprdceedings had In the civil district court for the parish of Orleans, a judgment was rendered reviving the said original judgment against the C;Sampson and Frank G. Sampson. in BoUdo, for of money; which app\lars by the certified tranacdpt (i6claration. on. ·the ,28th day of May, 1889, the said judgment in favor of the said Charles & WiJljamBastian was duly assigned to the plaintiff, at which time the assignors, Charles &; a'ild'residents of the state of Loulsiaha:" . ,',' r: :: ;_, ,·,,:.d,; :... 'J \"
i; , , " , ,: .

J;""

'i

To the several counts of the declaration, Frank G. Sampson has filed 'I demurrers as follows: To the first count:

MITCHELL &:

FURNITURE .QO. 11. SAMPSON.

80'1'

.. FErst. The said count·,is 80 inconsistent, and cont$in,s such variance in statements therein of the sum alleged to have recovf>red in the, alleged jUdgment therein sued on, that the same is bad in substance. Second. The said count arid alleged record of judgment therein sued on, and made a part thereof, show that there was never any personal service of process on said' defendant in the proceedings to revi ve the alleged judgment therein set fOl'th, and that defendant was, at the time of such proCtledings, not a resident of where said proceedings are alleged to have been had, but was,s resident of the state of Florida, and did not appear personally or by attorney therein, and the alleged court acquired no jurisdiction of defendant therein, ,and the suit herein, on said judgment as revived, is riot maintainable. Third; That tbecourt wherein original jUdgment was rendered neveraequired jurisdiction of the defendant. or to render jUdgment." To the second count, as follows: "First. ,'the like ground as the ground of demurrer above set forth to said first count. Second. That said alleged proceedings. whereon it isal.. leged, in said second ·count, jUdgment therein sued on was recovered and. vived; appear. and, the alleged judgment appears, to be by and in the name of, Johnson & Faulkner; the same not appearing to be a corporation, and di"idual, Christian nl,lmes of said,Johnson & proceedings, or being stated in plaintiff's said second count of his, declaration. Tliira.' Like ground, as the third'ground of demurrer, as first count." Totbe tbird count, as follows: , . "First. The said third count. in the body thereof, and the sued on and referred, and made a part thereof ,and filed tllerewitb,'so vary in sta'tement of the amount of money alleged to'have been adjudged in lavor of against the saiddefelldant in said alleged jUdgment· that same is badin substance. Secona.Said third count. and the alleged ;record of judgment therein su.edoo. aDd made a part thereof. show that, there never any, ller1ice of process on said in pro,ceedingsin a;I1eged said judgment was nor did said defend. ant appear therein in person, or by attorney; and the court never acquired jurisdiction of defendant, to render said judgment against him. Third. The said last-mentioned record of jUdgment, and alleged revival thereof. does not show that anyproeess, summons, or citation issued to said defendant in the alleged proceeding to revive said last-mentioned ;judgment. j!ourth. Said defendant assigns further like ground of demurrer Lo said third count as the second, and third grounds of demurrer above set forth to the plaintiff's' said declaration.'" , ,. " On the bearing of these dePlwrers the follOWIng q1,1estions were argued: in Louisiana" in a suit against acowmercial partnership. where cHation is issued, directed to and served on a a judgment ,can J>e rendered ,tn'solido against the individual members of the fir'm., Second. Whetber,'undedhe law and practice in I,ouisiana,in'asuit againsta'com-' mercialpattnership, seryice can,tie' made upon an agent. servant, or employe of thepllrtnership otherwise than at the place of, business or oounting-roQm of the partnership. , Third·. Whether, under the constituth).n and laws ianll/the !i(iNi},,<ijstrict court of, tbe,parlsh of OrleaHs, ,under the constjtution of 1879, is the successor of the former, district courts, of ,tile parish having jprjsdiction ,in civil m,atters,'and whether saId civil district jurisdiction to revi VEl jUdgmentJi rendered in said distdct courts of. the of Orleans prior to the adoption oHhe constitution of 1879. Fourth. Whether,. uoder:' the law of the state of LouiSiana relating to the revival of jUdgments. &curatol' ad hoc can be case.a jlldgmept is

,

FEDBRAI;:REPORTER,

vol. 40.

of tbe'sfate: -and. if so; wh6ther'$Rldcurator ad hoc can waive service of citation btappearillgand filing answer." , decision ofthese the judgments to be entered on. t1l615aid demurrers. ' 1.," Where the petition alleges the defendants are trading under a firm name, 'it appears the transaction was a commercial one, they will be as liable in solido,' a,rrd judgment given accordingly, without aijye*press allegation or prayer'for a judgment in solido." Chapman v. Eo:rh" 12 La. this, pase, plaintiff sued the firm of Early & Amelung. The defenqant Early only was appeared. Judgment in 8oUdo against both defendants was rendered in the lower court, and the same was affirmed in the supreme court. "The evidepce shows that the firm ,sued here is composed of six viduals, one of whom only, to-wit, John Cummings, was served with process of citation. This would have been sufficient, had the firm heen a commeroial one. Code ,Prao. art. 198. McGehee V. McCord, 14 La. 362.'J \ · "While'acoriimercial partnership is in existence 1 service of citation members of tpe,firm is good against all ofthem; but after on one of its dissolution every member intended to be sued and made a party must pe served with citation separately." Gaiennis &'r, 17 La. 42. " " , , together for carrying personal property for hire, in vessel.ll.are commercial partners. and may be cited in, the manner prescribed for the citation of such associations; but it. is only where they are' assooiated together under a title, or as ,a firm, that the service of a the partnership in its social hame, made on one of its membei'(dPly, is Hefferman V. Bt'enho;m, La. Ann. 146.', '" " .. ' , ' 2. "The service of citation .of appeal to be made.in the same manneras is required by law in courts.of ordinary jurisdiction. So the iee on a. commercial firm must be made on eithe.r of the partners in person, or by citation.1l-t their store or counting-house and delivering ittoWeir'clerk or agent." Huntstock V. His Credit()r8,lO La. 488. In this case, service upon a clerk of the firm, not appearilig to have been at the store or'counting-house,w8.s held bad. ,. "The Code of Practice, articltd98, requires citlltion's in suits against a on'one pfthe firm in 6r at their store and counting-house, by delivery 'to their clerk or agent. The return here showl'l the service to have been made at the hO,us6pf one of the partners, and does not state the citation was deliveredAo a clerk or agent of the firm. It was therefore oontrary to law, and could not be the basis Of a judgment. unless the want of it has been waived bjil'ome act of the defendantS." (N. S.) 145. ", .· , "In the of a the citation may be left"with the olerk, at the oounting-houl'le;. ang,: 'We havtl held that servioe on the clerk elsewhere is bad. HuntBtock>v. His Oreditor8, 10 La. 488. In this case, the service was made at Jtheproperplace, to-wit, the domicile of

case