
    Sebastian Hiriat v. Harriet Hildreth, widow, &c.
    Where issue has not been joined before the death of the original plaintiff, no judgment can be had lie-fore notice to the defendant of the revival of the suit.
    Appeal from the District Court, Sixth District, Parish of Iberville. Robertson, J.
    
      Rd/wa/rds, for plaintiff.
    
      Laba/woe, for defendant and appellant.
   Dunbar, J.

The plaintiff in this suit died after service of citation on defendant, hut before issue joined.

On the 6th September, 1852, on motion of W. R. Rdwa/rds, counsel for plaintiff, it was ordered by the District Judge, that the cause be transferred from the dead to the trial docket; and the said counsel having suggested the death of Sebastian Hiriat, and filed letters of administration to Paul Louis Hiriat, it was ordered that the said Paul Hiriat, administrator, he made a party to the suit. ■There does not appear to have been any service of this order of revival upon the defendant or her attorney, and the plaintiff’s counsel on the next day obtained from the Court a judgment by default against her, which was made final a few days thereafter, without any appearance or defence on behalf of the defendant.

On the same day, however, on which the judgment was made final against her, the defendant came into Court with her counsel and moved for a new trial, upon the ground that both the judgment by default and final judgment against her were irregular and illegal. The District Judge overruled this motion, and the defendant has appealed.

We think the District Judge erred. If there had been a contestatio litis before the death of the original plaintiff, the proceedings would have been regular, but not otherwise. Carlisle v. Holdship, 15th La. 375. Where there has been no issue joined before the death of the original plaintiff, the defendant should he notified of the revival. Licquet’s Heirs v. Pierce, 5th La. 363.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be reversed, and the case remanded for further proceedings—the costs of this appeal to be paid by the appellee.  