
    E. M. Jenkins, tutor v. Grigsby, et al.
    TVhere plaintiff prays that defendant “ be notified of his demand by service of citation and a copy of the petition,” and defendant is cited in the usual way it will be regarded as an ordinary action.
    If plaintiff who has a right to an executory proceeding selects the ordinary process,, the defendant has a right to answer, and after issue joined, the plaintiff is precluded from discontinuing tlie ordinary, and resorting to executory action.
    APPEAL from the District Court of Caddo. Oreswell, J.
    
      Landrum & Williamson, for plaintiff'
    
      Hodge & Austin, for defendant and appellant.
   Merrick, O. J.

The plaintiff being the holder, in her capacity of tutrix* of paper secured by mortgage on property in possession of the defendant as third possessor, filed her petition in the District Court for the parish of Caddo» setting forth her cause of action and concluding with the following prayer:

“Wherefore petitioners pray, the premises being considered, that the said John V. Grigsby who is now present, and in the parish of Caddo, be notified of this demand by service of citation, and a copy of this petition, and that on his default to return the property above described, or to pay the sum horetore set forth and claimed, that an order of seizure and sale issue to the sheriff of the parish of Caddo, commanding him. to seize and sell the said parcel of land,and to-pay out of the proceeds, thereof, to petitioner, $4,725 &c., and for all necessary orders and decrees, and for general relief.”

Citation in the usual form issued and was served with the petition upon th© defendant in January, 1857.

On the 30th of May, the cause was by order of the court set for trial on the; 5th of June. On the 5th of June, an order was entered on the-minutes granting a delay until June 8th, for defendant to answer and fixing the cause for trial on the 9th of same month. On the 9th day of June, the defendant offered to file his answer, which was objected to, on the grounds that action was-ride exeeuiira, and therefore defendant had no right to file an answer, and that he has no right to call Lewis K- Grigsby in warranty. The court refused to allow the defendant to file his answer on the first of those grounds, and defendant excepted.

The case was afterwards reassigned for trial and judgment rendered in favor of plaintiff, ordering the land to be seized and sold to satisfy the plaintiff’s demand.

The first question presented by the defendant and appellant is, did the court err in refusing to allow defendant to file his answer ?

In the answer, the defendant joined by his vendor and warrantor, sets up various defences to the plaintiff’s action. If, therefore, he had a right to file the same in the lower court, the cause must be remanded, to allow him to prove his allegations.

The Code of Practice divides actions into three kinds, ordinary, executory and summary. Art. 97. The ordinany action is where citation takes place and all the delays and forms of law are observed. They are executory when the seizure is obtained against the property ©f the debtor, without previous citation in virtue of an Act or title imparting confession of judgment, or in other cases provided by law. They are summary when carried on with rapidity and without the observance of the formalities required in ordinary cases. Art. 98. According to the foregoing definition the action instituted in this case was an ordinary action. It was, at the prayer of the plaintiff, preceded by a citation calling upon the defendant under the mandate of the court to answer the plaintiff’s demand within the delays allowed by law in ordinary cases. The plaintiff had the option to resort to this mode, or to obtain an order of seizure and s^ll without previous citation as allowed by Art. 734 of the Code of Practice. Having made his selection, the question arises is he so bound by it that he cannot recur to the executory process. Possibly so long as the contestatu titis had not been formed in this suit, he had the right to discontinue, pay costs, and commence de novo in the other form of the action. However, this may be, it is clear that so long as this suit was pending, the plaintiff could not resort to the executory process, as so soon as an issue had been tendered by the answer, the plaintiff’s citation had become absolute and he was forever precluded from resorting to that proceeding. 3 N. S. 501, 504 Gurtée v. Cognet. 2 L. R. 547. De Gruy Syndic v. Hennen. 2 Ann. 489.

The defendant had, therefore the right to file his answer and to be hoard upon his allegations therein as in other cases.

It is ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed, and that the case, be remanded to the lower court with instructions to the same to receive and cause the answer of the defendant annexed to his bill of exceptions to be filed, and otherwise proceed according to law, the plaintiff paying the costs of the appeal.  