
    LACY VS. KENLEY.
    Western Dist.
    September, 1831.
    APPEAL FROM THE COURT OF THE FIFTH DISTRICT, THE JUDGE OF THE DISTRICT PRESIDING.
    The extraordinary remedy or proceeding by attachment must strictly pursue all the forms of law, prescribing the mode of issuing the process and seizing the property of the debtor, on pain of nullity.
    In obtaining an attachment writ, on affidavit filed, the petition must, as a matter stricii juris, be filed the day succeding, when it does not preeede the writ. Otherwise the whole proceeding will he null and void.
    Before the act of 1828, amending the code of practice, the petition necessarily preceded the writ of attachment: Now it may follow in quick succession ; at least the day after.
    
      Joseph A. Lacy sued out an attachment against David Kenley, on an affidavit that the latter had permanently left the state, never to return. The attachment issued February 2d, 1830, for the sum of eight hundred and sixty-two dollars, which was executed the same day, by attaching nine hogsheads of sugar. The petition was not filed in court, until the 15 th of April, following. On the twelfth of April, the court appointed an attorney to represent the absent defendant. On the 22d of June, 1830, a citation issued on the petition, and was executed by posting a copy on the court-house door, the defendant having no domicil in the parish of St. Mary, where these proceedings were had. At the October term, following, the attorney appointed to represent the absent defendant,moved to dissolve the attachment on the following grounds: 1. Because there was no proof of the plaintiff’s demand made before the District Court, as alleged. 2. The petition was not filed in time, being two and a half months after issuing the attachment, &c. The motion was overruled, and a plea of a general denial put in as the answer.
    The plaintiff had judgment, and the defendant appealed.
    
      Bowen, for plaintiff.
    There is no irregularity in the proceedings in the case. The petition and citation have regularly followed the attachment, and an attorney appointed to represent the absent defendant.
    2. A judgment by attachment, may be reversed, if the defendant did not owe the whole, or any part, of the debt; but not for technical irregularities in the incipient stage of the proceedings. Code of Practice, article 614.
    
      Brownson, for defendant.
    The proceedings, in this case, are defective, and must be set aside. There was no petition accompanying the attachment, or filed for some time afterwards. The attachment must be demanded in a petition, presented to a competent judge, &c. Code of Practice, art. 243. 10 Martin, 472. 2 Martin, JV. S. 552.
    
      2. A petition must accompany the order of attachment, and be served on the party, or left at his domicil with the citation. All this must be done before any proceedings can take place under the attachments. Code of Practice, articles 251, 252, 253.
   Mathews, J.

delivered the opinion of the court.

This is a suit, by attachment, commenced in pursuance of the provisions of the fourth section of the act of the legislature, passed 1828, amending several articles of the Civil Code and Code of Practice. The writ was obtained on the affidavit of the creditor, and regularly executed according to its tenor. But the usual petition was not filed on the day prescribed by the law, which gives this prompt remedy to attaching creditors.

The writ of attachment was issued on the second of February, 1830, and no petition was filed in the cause until the 15th of April, following.

The court below proceeded to final judgment, after having' overruled the exceptions of the counsel appointed to defend the absent debtor, to the regularity of the proceeding on which the citation was issued, and served in conformity to the rules established by the Code of Practice in relation to attachments. From this judgment an appeal was taken on the part of the defendant.

The sole question which requires solution by this court, appears, to us, to be, whether the attachment is void or voidable — null, absolutely, or relatively, in consequence of the plaintiff not having pursued strictly the law by virtue of which it was granted, in neglecting to file his petition on the day succeeding that on which the process issued,

Whatever may be the general doctrine of nullity, relating t0 contracts or judicial proceedings, in ordinary cases, it is ke^eved that °n the extraordinary remedy by attachment, ah the forms prescribed by law for this process must be strictly Pm'su^d> on Pain of nullity as a consequence of their neglect. According to the Code of Practice, which the act of 1828 purports to amend, it was required that a petition, presented to a competent judge, should precede the writ of attachment; and that, in addition to the seizure of property under this writ, the defendant should have the benefit of a citation, in the manner prescribed by law. See Code of Practice, articles 243, 254.

Thus it is seen, that previous to the act under which the present attachment was allowed, a petition necessarily preceded the writ. Now, it may follow; but must do so m quick succession, in order to support the previous proceedings, which formerly rested on the petition ab initio. The filing of such petition, on the day succeeding the issuing of the process of attachment, we believe to be a matter stricti juris, and a neglect so to do, fatal to the validity of the incipient process, if its nullity be invoked on the part of the debtor, as ,, ’ in the present case.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled: And it is further ordered, &c., that this suit be dismissed at the costs of the plaintiff and appellee, which have accrued in both courts.  