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.