On Application for Rehearing.
NICHOLLS, C. J.In his application for a rehearing, the plaintiff in injunction, Ba-ham, urges that the Supreme Court must have overlooked clause 4 of article 606 of the Code of Practice, which recites expressly as one of the grounds for an action of nullity the case where the defendant has not been legally cited, and has not entered .appearance, joined issue, or had not a regular judgment by default taken against him. He further urges that the Supreme Court ■overlooked two of the grounds upon which he attacked the judgment in favor of Stewart Bros. & Co.; one being that the citation of the case only mentioned the initial letter ■of the defendant’s name, which was not a substantial compliance with the requirements of article 179 of the Code of Practice, to the effect that the citation must mention the name of the defendant; the other, that the judgment was not read and signed in open court. Counsel say that, the judgment ■of the district court having been against A. j. Baham, it was, when appealed to the Court of Appeal, the duty of the latter court to have passed upon all his points (citing Villars v. Faivre, 36 La. Ann. 398; Rauxet v. Rauxet, 38 La. Ann. 669), and, the Court of Appeal having failed to do so in consequence of the conclusion it reached as to the nullity of the citation, the Supreme Court should, on review, have itself disposed of all the issues raised in the petition for injunction.
In the decision hereinbefore rendered, we confined our review to the issue which had been disposed of by the Court of Appeal in its judgment.
Article 101 of the Constitution declares that “if the whole record be sent up the court shall decide the whole matter in controversy in the same manner as if it had been on appeal directly to the Supreme Court.”
We are therefore in a position to pass on the whole ease, and we will consider all the questions which he seeks to have reviewed. Before doing so, we will say that the court did not overlook the fourth clause of article 606 of the Code of Practice, as supposed. Beyond dispute, the want of citation to a defendant is good ground for an action of nullity; but, when such an action is brought, it must be based, as the article itself declares, upon the fact that the defendant was in fact not cited, not upon the fact that the sheriff, in his return of the service of citation, may have omitted some statement which should have appropriately been inserted therein. If the fact omitted in the return should have been the action of the sheriff himself, and which no one but he could certify to, the citation itself would fall with the return, but not if the fact omitted should have been a collateral fact, in respect to which the sheriff had no special individual knowledge, but which was known to and could be as well established by third parties as by him. The sheriff should himself state in his return upon whom he makes service, for that shows the act of the sheriff, but if, after reciting the fact that he had made the service upon a wife, he fails to say that she was apparently over 14 years of age, that fact could be established by any competent evidence dehors the return. Counsel fails to appreciate the difference between the existence of a thing and the evidence to establish it. State v. Beeder, 44 La. Ann. 1010, 11 South. 816.
*1011We see no reason to change the views which we have announced on this subject.
We pass now to the other matters referred to. It having been established that a petition, with a citation accompanying the same, addressed to A. J. Baham, was served upon the wife of A. J. Baham, it was his duty, if he was not the party concerned in the subject-matter, to have appeared in the district court and excepted to the citation. Having failed to do so, and permitted a judgment by default to be entered upon the citation as made, he acquiesced in the same, and could not raise that objection later. The matter was, at best, the subject of a dilatory exception. Plaintiff in injunction even now does not pretend that he was not in fact the party whose name was signed to the note sued on, and against whom Stewart Bros. & Oo. had a legal right to proceed.
We next come to the objection that the judgment was not signed or read in open court. The signature of a judge to his judgment is, of course, necessary, but we know of no law which requires that the physical act of signing should be done in open court. The decisions of this court are signed in the consultation room, never in open session. They are always read in open court, as article 543 of the Code of Practice requires this to be done. A judgment signed out of court does not become completed and operative as a judgment until read in open court. It is inchoate, but not null. Wlien read in open court, the fact that it may have been signed in the clerk’s office or elsewhere is a matter of no consequence. In the present case it would seem the judgment was signed,- but it was not read in open court.Execution upon it was therefore not warranted, and the district court properly sustained the injunction. The ground, however, upon which the injunction was sustained should have been placed farther back than the failure to give notice of judgment. The judgment of the district court left the plaintiffs in the suit in position to issue a new execution after merely giving a notice of judgment. . To that extent there was error. No execution could issue under existing conditions.
The judgment rendered must, before ‘becoming executory, be read in open court. While we affirm the judgment of the district court perpetuating the injunction which issued against the execution taken out by Stewart Bros. & Oo. against A. J. Baham, we amend the same by adjudging and decreeing that the execution which issued in this matter was illegal and unjustified, for the reason that the alleged judgment upon which it issued was inchoate — not a completed and operative judgment — by reason of its not having been read in open court, and we hereby remand the cause to the district court; the said judgment to be read in open court before execution can issue thereupon. It is further ordered, adjudged, and decreed that the judgment heretofore rendered in this case by this court remain undisturbed, except in so far as it is modified by the present decree.