
    NO. 7478.
    O. B. & S. A. STILES VS PENNICK & FORD, LTD.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    
      
    
   OPINION.

By St. Paul, Judge.

Defendant appeals fror; a judgment By default and files asAggnment of errors in whioh it complains of illaged irregu-in the pleadings, oitation, return, and judgment,as follows;

I» That in the pleadings, oitation, and judgment, the defendant's name has Been written and spelled in full instead of By means of signs and abbreviations (as ahoye).

2. That according to the return the oitation was served upon "PenAok & Ford Company" instead of Pentok & Ford, Limited.

8. Shat the return fails to reoite oertain facts in connection with the service as made, or to state how oertain other facts had. Been ascertained.

I.

The right to use signs and abbreviations in judicial proceedings has often Been questioned and the practice has Been generally discouraged (32 Cyc 77); from which it follows that the opposite practice 1b to Be oommended rather than condemned. It would therefore Be inequitable that plaintiffs shpuld Be penalized for adopting the Better oourse.

II.

As it was clear from the petition and oitation herein that they were intended for the defendant herein, the identity of the defendant with the Penick & Ford Company mentioned in the return is apparent, and the slight clerical error in the name of the defendant is immaterial. C. C. 422; Daniel vs Bush Hotel, 8 Ct App 235; Sentilles vs R. R. Co. 9 Ct App 15.

III.

The defendant's domicile is in the parish of Orleans. It was cited in the parish of Jefferson, Before a court of that pariah. apon a cause of aotlon ex delicto arising in said parish.

She sheriffs return «as as follows;

"Received May 31st 1918, and on the sane day "»4nrirnr'M¡ri of the within petition and citation on Penicfc vk Ford Co. Through Goergo Guest, its superintendent, in person, 11 m the parish of Jefferson at about ^¡Tralles from the courthouse

The general oorporation law. Act 267of 19M-, provides in paragraph "d" of Section 26 that where a causo of action arises ax delioto against a oorporation the venue may he laid in the parish where the cause of action arose. And paragraph "a" of the same seotion provides that in such oases the oorporation may he oited hy service on the agent in charge of the affairs of the oorporation at that place; and such service may he made on suoh agent wherever he may he found.

So we think the service and return were both sufficient.

Under Article ## 200 of the Code of Practice the Sheriff must m^ke a return stating the manner in whioh hefserved the citation; and that return like all his other official returns is prima facie evidence of the facts therein stated; Cox vs Wills, 3 N. S. 158; Fleming vs Conrad, 11 M. 301. So much so, that it is not even open to collateral attack; Johnson vs Puhalovich, 8 Ct App. 421.

Accordingly where the sheriff returns that he served the agent of a oorporation his statement is presumptive evidence of such agency. Scherr Mfg Co vs American Insc Co, 11 Ct App 131; See also Sloan vs Menard, 5 An 218.

And exoept where the service was domiciliary the Code of Practioe fixes no particular form of return. Artiold 201 and 202, requiring the sheriff to state inter alls the source of his information, hy their very terms apply only to domiciliary service. See also Whiting vs Haggerty 5 An 686.

The case of O'Connor vs Jones, 7 Ct of App. 267, relied upon hy appellant was a case of domiciliary service, without pratense «f validity otherwise. See same case in 8 Ct of App 244, and in 129 La 411.

May 1919.

On the «hole we think that If a return, in fora and anhatanoe auoh aa the one In this cuse-, la not to he taken as presumptive «▼idenoe of the foots whloh it recites, and allowed to stand until set aside in sons direet form of aotlon,.then no judgment hy default can ever he relied upon or enforoed; with this ourlous result to follow, that a defendant will alnost always he.more eertaln of aneoess on appeal If he allow the oase to go hy default rather than attempt to defend It. And we feel that suoh was not the Intent of the law.

We therefore think that all the proceedings in the court helow were sufficient and valid, and accordingly;

the judgment appealed from is therefora affirmed.

Hew Orleans, la,  