delivered the opinion of the court.
This is a suit, by attachment, commenced in pursuance of the provisions of the fourth section of the act of the legislature, passed 1828, amending several articles of the Civil Code and Code of Practice. The writ was obtained on the affidavit of the creditor, and regularly executed according to its tenor. But the usual petition was not filed on the day prescribed by the law, which gives this prompt remedy to attaching creditors.
The writ of attachment was issued on the second of February, 1830, and no petition was filed in the cause until the 15th of April, following.
The court below proceeded to final judgment, after having' overruled the exceptions of the counsel appointed to defend the absent debtor, to the regularity of the proceeding on which the citation was issued, and served in conformity to the rules established by the Code of Practice in relation to attachments. From this judgment an appeal was taken on the part of the defendant.
The sole question which requires solution by this court, appears, to us, to be, whether the attachment is void or voidable — null, absolutely, or relatively, in consequence of the plaintiff not having pursued strictly the law by virtue of which it was granted, in neglecting to file his petition on the day succeeding that on which the process issued,
Whatever may be the general doctrine of nullity, relating t0 contracts or judicial proceedings, in ordinary cases, it is ke^eved that °n the extraordinary remedy by attachment, ah the forms prescribed by law for this process must be strictly Pm'su^d> on Pain of nullity as a consequence of their neglect. According to the Code of Practice, which the act of 1828 purports to amend, it was required that a petition, presented *19to a competent judge, should precede the writ of attachment; and that, in addition to the seizure of property under this writ, the defendant should have the benefit of a citation, in the manner prescribed by law. See Code of Practice, articles 243, 254.
Thus it is seen, that previous to the act under which the present attachment was allowed, a petition necessarily preceded the writ. Now, it may follow; but must do so m quick succession, in order to support the previous proceedings, which formerly rested on the petition ab initio. The filing of such petition, on the day succeeding the issuing of the process of attachment, we believe to be a matter stricti juris, and a neglect so to do, fatal to the validity of the incipient process, if its nullity be invoked on the part of the debtor, as ,, ’ in the present case.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled: And it is further ordered, &c., that this suit be dismissed at the costs of the plaintiff and appellee, which have accrued in both courts.