
    State of Louisiana vs. Johnson et al.
    Western Dist.
    
      Oct. 1838.
    _APPEAL PROM THE COURT OF TUB FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF CONCORDIA, TIIE JUDGE OF THE SECOND PRESIDING.
    Judgment nisi on bail bonds, need not be signed by the judge, in order that copies be served as notices on the parties. The judge’s signature is only required to final judgments.
    Service of citation or notice of judgment nisi, made on a person residing at the domicil of the defendant, found in the street or elsewhere, is irregular.
    The return should show that copies of the process, were left at the domicil.
    
    Where a judgment nisi is directed by law to be made final at the succeeding term, and the court fails, it may be done at the following term. The law in this respect is considered as merely directory.
    On a motion to make a judgment final, the proceedings are summary, and no particular day need bo assigned for trial.
    
      When an act, creating an offence is repealed, even after judgment in the inferior court, the judgment must he reversed if it has not been affirmed before the repeal. It is otherwise when the remedy only is changed by a new law.
    This is an action to render the sureties in a bail bond liable, given for the appearance of M. Johnson, charged with the murder of Thomas Ash. Johnson was admitted to bail the 5th April, 1836, for his appearance at the June term following, of the Concordia court. The tenor of the bond is thus: “ Know all men by these presents that we, M. Johnson, Wra. Nevills, and John Briscoe, are held and firmly bound unto E. D. White, governor of the state of Louisiana, in the sum of three thousand dollars, etc., for the payment whereof, we bind ourselves, our heirs, and assigns, severally, unto E. D. White, governor, etc. Given under our hands, this 5th day of April, 1836.”
    “ The conditions of the above obligation are such, that whereas M. Johnson, has this day appeared before the undersigned, a justice of the peace, and is held to bail on a charge of an assault on Thomas Ash, on the 3d iust. Now, if the said Johnson does appear at the next term of the District Court, to be held at Vidalia, on the 1st Monday of June next, and remain until discharged by said court, and answer to the said charge, then this obligation to be null and void, otherwise to remain in full force and binding, etc.
    Signed in presence of), M. JOHNSON,
    Nicholson Barnes, > W. NEVILLS,
    Justice of the Peace. ) JOHN BRISCOE.
    At this term an indictment for murder was found by the grand jury. Johnson was called and failed to make his appearance ; and the sureties being required to produce him also failed, whereupon a judgment nisi was entered against the principal in the bond for three thousand dollars; and also, “ against the two sureties, for the sum of fifteen hundred dollars each.” The court failed at the following December term.
    At the June term, 1837, of the Concordia court, the defendant, John Briscoe, one of the sureties, filed exceptions to the proceeding against him and his co-surety, as follows :
    1. That notice of the judgment nisi issued prematurely, not being signed by the judge, or certified by the clerk of the court from whence it issued.
    2. The service of notice is bad, as the sheriff’s return makes no mention of the name of the person on whom it purports to have been served ; and service does not appear to have been made at the defendant’s domicil.
    3. No service would be legal unless served on him personally, or on a person appointed by the, court, in conformity to the act of 1835.
    This defendant' further pleaded a general denial; prescription ; and denies there has ever been a forfeiture of the bond.
    These exceptions were overruled ; and also a prayer to have a day assigned for trial, that the defendants might prepare for their defence ; the district judge being of opinion that the proceeding was summary, and the party called on to show cause why judgment nisi should not be confirmed, was bound to make his showing instanter. The defendants excepted to the opinion of the court.
    An answer was filed to the merits, and time to procure testimony being refused, judgment was made final.
    The defendant’s counsel moved for a new trial on the following grounds:
    1. The original copy of the judgment nisi was not certified by the clerk, or signed by the judge.
    2. There was not as many certified copies of the judgment nisi, and the bond served, as there are defendants; and that no attorney, or curator ad hoc was appointed to represent Johnson, who was absent.
    3. The bond upon which judgment is rendered, is a joint obligation, and the judgment should have been joint.
    4. There was no court at the time the principal was required to appear, consequently there was no forfeiture of his bond.
    5. Time to procure testimony was improperly refused.
    
      Judgment nisi on bail bonds need not be signed by the judge, in order that copies be served as notices on the parties. The judge’s signature is on)y required to final judgments.
    Service of citation or notice of judgment nisi, made on a person residing at the domicil of the defendant, found in the street or elsewhere, is irregular. The return should show that copies of the process were left at the domicil.
    
    The motion for a new trial was overruled, and the defendants appealed.
    
      Stacy, late district attorney, appeared for the state.
    
      Dunlap, for the defendants.
   Martin, J.,

delivered the opinion of the court.

The defendants, John Briscoe and Wm. Nevills, bail of M. Johnson, are appellants from a final judgment on then-bond. They pleaded, first, that notice of the judgment nisi issued prematurely, not being signed by the judge of the court, or certified by the clerk according to law.

2. That it was not legally served, the sheriff having failed to name the person upon whom it was served, or that he served it at defendant’s domicil.

3. No service could be legal, unless served upon him in person, or upon a person appointed bj'’ the court, in conformity to the act of 1835.

. I. The judgment nisi did not require the signature of the judge, which is only required in final judgments. The allegation that the copy of the judgment and bond, was not certified by the clerk, is absolutely gratuitous, and unsupported by proof; for the sheriff has attested, that he delivered a true certified copy of the judgment, and the bond annexed.

II. The sheriff’s return shows, that certified copies of the judgment and bond, was served personally on the defendant, Nevills, and therefore, legally; so that as to him the plea fails. The sheriff’s return, also shows, that as to the defendant, Briscoe, certified copies were left with a free person, above 14 years of age, residing at his domicil.

The Code of Practice is silent as to the manner which notices in cases like the present, are to be served; and the act of 1835, under which these proceedings were had, is also silent in this respect. Service on a person residing at the domicil of a party, found in the street, or at any other place than the domicil, is, in our opinion, irregular. The return in the present case, does not show that the copies were left at the domicil of the defendant, Briscoe.

Where a judgment msi is directed by law to be made final at the succeeding term, and the court fails, it may be done at the following term. The law in this respect is-, considered as-merely directory.

In the case of Huntstock vs. His Creditors, 10 Louisiana Reports, 488, the sheriff returned, that-he had left the citation with the clerk of one of the parties. We held that this was irregular, because it did not appear that he had done so at the defendant’s domicil, or counting-house.

The exception to the service on the defendant, Briscoe, is, therefore, sustained.

It-becomes necessary in regard to the defendant, Nevills, to examine an assignment of error, to wit: “that the court at the June term, 1837, should not have rendered final judgment, because the judgment nisi was entered-at the June term, 1836, twelve months before, and that the December term, 1836, was the next term of said court, as established by law; 'and that, the act of the legislature, approved 2d April, 1835, relative to recoveries on bail bonds, directs that the judgment mm shall be made final on the second day of the next regular term of the court, or during the term.”

This assignment presents the naked question, whether the state is precluded from making proof of the service, and having the judgment nisi made final by the adjournment of the court, at the end of the term which followed that on which the judgment nisi was taken 1

The reason to decide this question in the affirmative, is, that the defendant has the right of showing why the judgment nisi should not be made final, and is not bound to exercise it until the slate shall have proved a regular service on him; and having failed to do so during the term, as stated in the act, the state is presumed to have abandoned the prosecution.

The reason to decide in the negative, is, that the words of the act are merely directory as to the time of making the judgment nisi final, and there is no prohibition against this being done at a subsequent-term.

Perhaps the defendant should have shown, that as the judgment nisi was taken in June, 1836, and not made final until the June term, 1837, there was a session of the District Court intervening in December, 1836; for, if the court failed at the latter term, the June term following was regu-lady the next term after that at which judgment nisi had been taken. The failure of a term of the court, is, perhaps, not to be presumed, but on the contrary the presumption that the proceedings of the court are regular, is equally strong.

On a motion to make a judgment final, the proceedings are summary, and no particular day need be assigned for trial.

When an act creating an of-fence is repealed, even after judgment in the inferior court, the judgment must be reversed if it has not been affirmed before the repeal. It is otherwise when the remedy only is changed by a new law.

Upon the whole, we conclude, that the judgment nisi was properly made final at the June term, 1837.

A bill of exception was taken to the opinion of the court, refusing to assign the cause for trial on a particular day.

It does not appear to us that the court erred. On a motion to make a judgment final, the proceedings are summary, but the party may obtain a continuance on any legal ground. This does not appear to have been asked in the present case.

Lastly, it was urged that the act of 1835, authorizing the proceedings on which the judgment in this case was obtained, was repealed after the judgment nisi was taken, but before it was made final, and that the repeal disabled the court from making it so.

It is true, that when an act creating an offence is repealed, even after judgment in the inferior court, the judgment must be reversed, if it has not been affirmed before the repeal. The reason of this is, that a legislative pardon,is presumed to have been intended. It is otherwise when the remedy only is changed.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the District Court, be annulled, avoided and reversed, so far as it relates to the defendant, Briscoe ; and that so far as it relates to the defendant, Nevills, that it be affirmed with costs.  