¶1The defendant is appellant from a judgment against him, on a recognizance for his appearance at court. The Attorney for the State in the Second District, has prayed for the dismissal of the appeal, on the ground that the citation was not served on the proper officer, and on an averment that the defendant is not a resident of the parish of Assumption, as he states himself to be, but is a fugitive from justice, who conceals himself, and cannot be apprehended, or brought to court to stand his trial on the indictment found against him.
¶2It appears to us, that the Attorney for the State, who has obtained the judgment appealed from, and is the representative of the State in that'district, is the officer on whom the citation should have been served. - If served on the Governor, or the Attorney General, neither of these functionaries could do any thing on the appeal, until he had communication with the District Attorney. Wherever the residence of this man maj' be, he has a right Of appeal to this court; and his being a fugitive from justice neither destroys nor impairs his right. His appeal must, therefore, be sustained.
¶3Hie counsel for the appellant urges, that the principal and his surety should have been called at the court at which the first was bound to appear by his recognizance ; and that no proceedings having then been had, none could be correctly had at the succeeding term, when the judgment appealed from was taken.
¶4The condition of the recognizance was, that the principal should appear at the May term after the recognizance was entered into. His appearance at that term was the only means of protecting him from the forfeiture of his recognizance. It is not pretended that he appeared. The law has made it the duty of the officer of the State to have the parties, bound by any recognizance, called, and to take judgment against them, if the principal be not produced ; but this direction to the officer of the State does not absolve the parlies to the recognizance. If they wish to resist the claim of the forfeiture to the State, they must allege and prove the appearance of the principal.
¶5Judgment affirmed.