
    Dixon v. Kennard & Shields.
    In this case there were two persons of the same name, but service of citation was made on the wrong one, and the suit discontinued as to him; the other could not be sued by a mere amendment to the petition and adding the word junior, without a new service of citation. — Ante, 42 (IY.), and cases there noted.
    Appeal from the court of the third district, for the parish of East Baton Rouge, the judge thereof presiding.
    This is an action against John Kennard and Andrew Shields, as the indorsers of a promissory note. There was judgment by default made final against Shields; but it appearing that there were two persons by the name of John Kennard residing in the parish, father and son, and that the wrong one was cited, the plaintiff’s counsel discontinued the suit as to John Kennard.
    He filed an amended petition, merely propounding interrogatories to John Kennard, junior; requiring him to look at the indorsement on the note and say if he did not indorse it, and that the indorsement was in his handwriting? The sheriff returned that he served a copy of this amended petition on John Kennard, junior, in person.
    Kennard appeared by counsel, and excepted to the action, so far as it purported to be against him; because no petition and citation in said suit had ever been served on him. He averred that all the proceedings were null as to Mm and prayed that the suit be dismissed.
    The plaintiff again amended his petition by adding the word junior after the name of John Kennard, but without any citation having issued.
    Kennard, junior, renewed his exception and answered to the merits. The exception was overruled, and Kennard, junior, appealed.
    Brnnot, for the plaintiff,
    urged the affirmance of the judgment.
    
      [469] Elam, for the defendant,
    assigned errors apparent on the face of the record; relying upon the irregularity of the proceedings and the want of service of petition and citation.
   Bullaed, J.

delivered the opinion of the court.

• The appellant assigns for error apparent on the face of the record, that judgment was rendered against him without legal citation and petition, and without any suit existing on the record of the district court, on which such a judgment could be predicated.

'The facts appear to be, that suit was brought against John Kennard, and one Shields, as indorsers of a promissory note. That there were two persons in the parish by the name of John Kennard; father and son. Service was made upon John Kennard, the father; but as soon as it was discovered that he was not the real indorser, the suit was discontinued, and judgment signed to that effect, on the 5th February, 1838. Previously to the dismissal of the first petition, the plaintiff, with leave of court, amended his petition, by putting interrogatories which were served on John Kennard, junior. Kennard, junior, then filed his exceptions, which appear to form the basis of the present assignment of error, to wit, that although the plaintiff had discontinued Ms action as to Kennard, yet he had taken a judgment by default against him as John Kennard, junior, when no petition has ever been presented against him, nor has he ever been cited to answer the same. At the following term, another amendment was made, adding the word junior, to the name of John Kennard; and the exception having been overruled, an answer to the merits was filed; and judgment having been rendered against John Kennard, junior, he appealed.

“We think the assignment well taken. The suit was discontinued as against Kennard, and only one of that name was made a party. The service of citation was upon the father, and no citation appears ever to have issued, addressed to the son. After the suit was discontinued, a new suit could not [470] he ingrafted upon the first petition by way of amendment, without citation. If, when it was discovered that service had been made on the wrong person, an alias citation had been taken out, and1 a new service made upon the real defendant, the proceeding might have been regular. But we think the court erred in overruling the exception of the present appellant.

It is therefore ordered, adjudged and decreed, that the judgment of the district court he avoided and reversed; and it is further ordered, that the exception of John Kennard, junior, he sustained, and that there he judgment in his favor, as in the case of a nonsuit, with costs in both courts.  