
    
      BREAUX vs. GREAUD.
    
    Appeal from the court of the first district.
    If the sheriff actually swore to his return of a citation of appeal, and the clerk omitted to add the jurat, the appellant has a right to have the omission supplied.
   Martin, J.

delivered the opinion of the court. This case originated in the court of probates of the parish of Plaquemine, and went up by appeal to that of the district. After the return day, the appellee having sworn he was not served with the citation, and averred the absence of error in the judgment, the appellant obtained the court’s order, that the sheriff be permitted to make his return on the citation. He did so, by endorsing thereon that he had served a copy of it on the appellee, in person.

Eastern Dis’ct

April, 1827.

The appellee now filed his affidavit in opposition to the sheriff’s return, and moved for a dismissal of the appeal, because the return was not verified by the sheriff’s oath.

The appellant next moved that the clerk be ordered or permitted to state at the foot of the return that it was sworn to, and offered the sheriff’s affidavit that he had actually sworn to his return at the time he made it, and served the citation. This being objected to by the appellee, the objection was sustained on the ground that the service should have been made to appear on the return day. A bill of exceptions was taken: the appeal was dismissed, and the present taken.

The service of a citation on an appeal is by law, required to appear by affidavit. 1807, c. 1. s. 19. But if the sheriff, as was suggested, actually swore to his return, and the clerk omitted to add the jurat, the appellant on shewing this fact, had a right to have the omission supplied.

The rule, posterior to the return day, allowing the sheriff to return the citation, while it stood unrescinded, was an ample objection to the claim of any advantage to which the failure of making the return on the first day of the term gave rise.

Morse for the appellant, Eustis for the appellee.

The appellee had no right to swear in his own cause. We are of opinion that the judge erred. He ought to have directed the clerk to add the jurat, if the sheriff did swear on making his return, or received the sheriff’s oath of the service.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed ; and the case remanded, with directions to the judge to order the clerk, if the sheriff did swear to his return, to add the jurat thereto, and if he did not, or the clerk does not recollect that he did, to receive the sheriff’s affidavit; and it is ordered that the appellee pay costs.  