42 So. 256 | La. | 1906
Statement of the Case.
Maximilien Becnel died in 1892; his widow in 1906. The issue of their marriage were seven children, Maximilien Becnel, Jr., Annette Becnel, Marie Becnel, Cleona Becnel, Eva Becnel, Philomene Becnel, and Louise Becnel.
Philomene Becnel married Charles L. Stewart, and died before the institution of this suit, leaving a number of children, of which their father was appointed tutor.
Eva Becnel married J. A. Webre, and died before the institution of this suit, leaving a number of children, of whom their father was appointed tutor.
. Cleona Becnel married her brother-in-law, J. A. Webre.
After the death of Mrs. Becnel, an inventory was taken, showing household and other movable property, some cash, and a number of mules and plantation utensils; also a plantation, with buildings upon it, cultivated in cane. Maximilien Becnel, Jr., applied for and was appointed administrator of the succession, and was authorized by the court to cultivate the land, hire laborers, and pay them.
On the 17th of April, 1906, Maximilien Becnel, Jr., in his capacity as administrator of the succession, and as one of the heirs of the deceased, joined by his sisters, Annette, wife of Emilie Laurent, Marie Becnel, wife of James A. Stewart, Cleona Becnel, wife •of J. A. Webre, and Louise Becnel, brought the present action for a partition of the property of the succession by lieitation against the minor children of Philomene Becnel, deceased wife of Charles L. Stewart, and the minor children of Eva Becnel, deceased wife of J. A. Webre; the minors being cited through their respective tutors. Emile Laurent, James A. S'tewart, and J. A. Webre joined in the suit to authorize their respective wives.
On the application of Charles L. Stewart, acting as tutor, on behalf of his minor children, and of J. A. Webre, acting on behalf of his minor children, family meetings were convoked and held before the clerk of the district court for the parish of St. John the Baptist, ex officio notary public and recorder, for the purpose of fixing the terms and conditions of the sale of said property and the minors’ interest therein.
In their petition for a partition the plaintiffs alleged that they were unwilling to remain any longer owners in indivisión of said property with the minors, and that it was not divisible in kind, and that it should be sold to effect a partition. They prayed for the appointment of experts to report whether the property was divisible in kind or not, and experts were so appointed. In due course they reported that in their opinion, after examining the property, the movables could be divided in kind without a diminution of value and inconvenience to all the parties, but that the real estate, including all of the farming utensils, etc., could not, and that a sale of the latter property was absolutely necessary to effect a partition among the co-owners.
In answer to plaintiffs’ demand, Charles L. Stewart and J. A. Webre, as tutor of their respective minor children, -after admitting the joint ownership alleged, pleaded a general denial. They prayed for strict proof of plaintiffs’ allegations. On the trial of the cause the procés verbal of the proceedings of the family meeting held in behalf of the!
The family meeting on behalf of the Stewart minors was of the opinion that it was not to the interest of the minors that the real property should be sold at that time, in consideration of the lateness of the season for a public sale. It was of the opinion, and so recommended, that said property in the interest of the minors should be divided in kind; that they would be better benefited thereby than by any sale. On the trial the defendant Stewart, tutor, attempted to prove that it was to the interest of all parties that no sale of the property should be made at that time, owing to the lateness of the season, but the court overruled the objection, on the ground that the other parties had the right, under article 1289 of the Civil Code, to demand a partition at any time. A bill of exception was reserved to this ruling.
After evidence adduced, the court ordered and decreed that there be a partition in kind of the movable effects, but ordered and decreed that the real property, consisting of the plantation, mules, etc., and improvements, be sold at public auction for cash, to effect' a partition by Iicitation among the heirs.
Charles Stewart appealed.
Opinion.
This ease was submitted by both parties-to the court without argument. Defendants’’ attorney has filed no brief. No reason has-been assigned for his making no appearance, and we strongly suspect that, having,'through-the present legal proceedings, succeeded in the principal object, apparently, of his opposition (the postponing of the sale of the-real estate until after the crop of cane upon-it should have been taken off), he has abandoned his opposition. There is no evidence-in the record as to where the domicile of J. A.. Webre is. We cannot presume that it was in-the parish of Iberville, as stated. Appellants urge that, even had his domicile and that of' the minors been in the parish of Iberville, and had the proceedings of the family meeting been excluded, that fact would in no manner alter or affect the judgment of the court in. this case, first, because a family meeting on behalf of the minors was not essentially necessary in the premises, as they were defendants and not plaintiffs, and the answer of their father left the matter at issue to be decided by the court on the evidence; and, second, because the residence of their mother was in the parish of Iberville, her succession and that of her father and mother were opened in St. John the Baptist parish, and the-property sought to be partitioned was in that, parish; that, under such circumstances, the district court of St. John the Baptist would have at least concurrent jurisdiction. In support of these propositions counsel refer the court to Shaffet v. Jackson, 14 La. Ann. 157, and Crawford v. Binion, 46 La. Ann. 1263, 15 South. 693. The question of jurisdiction having passed out of the case, there is no necessity for discussing it.
Article 9 of the Constitution confers upon parties charged with crime the right to a “speedy trial”; but this right is modified by the provision in the sixth article that reasonable delays are justified. State ex rel. Baumann v. Langridge, 44 La. Ann. 1014, 11 South. 541.
This court correctly rejected as unwarranted in Land v. Smith, 44 La. Ann. 934, 11 South. 577, the right claimed by the defendant to hold the property for an indefinite time for speculative purposes, and to reach possible increased values; but that proposition differs from a prayer made and submitted to the court for a short postponement of a sale in partition, in order to avoid immediate injurious consequences from existing causes. We think that on that issue the parties should at least be heard, leaving to the court to reject the prayer if found to be incompatible with the right of the plaintiff to have the partition made within a reasonable delay. Civ. Code, arts. 2884r-2886.
We think the testimony which was sought to be elicited by the defendant under proper pleadings should be allowed to be introduced, subject to its legal effect. The only evidence we find in the record on the subject was the opinion expressed by one of the defendant’s own witnesses, that the property could be sold as advantageously in May as it could be later. We make these remarks in view of the conclusion which we have reached which makes it necessary to reverse the judgment of the district court, and to remand the case for a new trial. Our conclusion is based upon the fact disclosed by the record, though not commented upon by the defendant, that the minors are not properly in court. Though their father would generally represent them in partition proceedings, he appears in this