1 Rob. 581 | La. | 1842
The petitioner claims as the heir of Marie Fou-teneau, his mother, one third of certain moneys and notes which were received by the defendant, his brother in law, from. Jean Baptiste Eloi, who is alleged to be his father. Annexed to the petition is a certificate of baptism, in which the plaintiff is declared to be the legitimate son of J. B. Eloi and Marie Fonteneau, and a receipt of the defendant, stating that the money and notes delivered to him -by J. B. Eloi, are the aggregate amount of the shares of his three minor children, Paul, Augustin, and Evelina Eloi, in the estate of their mother, Marie Fonteneau, and promising to payan interest of ten per cent per annum thereon. The answer admits the defendant’s signature to the acknowledgment or receipt annexed to the petition, but avers that it was signed through error ; that at the time that the acknowledgement was made, it was believed that the plaintiff was one of the legal heirs of the late Marie Fonteneau; that the defendant has since discovered that the plaintiff is not one of the said heirs, but, on the contrary, is an adulterous bastard; that at the time of the birth of the plaintiff, his father, Jean Baptiste Eloi, was not married to his mother, Marie Fonteneau; that the plaintiff is the issue of an illicit and adulterous intercourse between Jean Baptiste Eloi and Marie Fonteneau; that at the time of the conception and birth of the plaintiff, his mother was the legitimate wife of the late Joseph Smith, who did not die until the 23d'of January, 1821; that after the death of Smith, her first husband, Marie Fonteneau married J. B. Eloi, the father of the plaintiff, which marriage could not legitimate the plaintiff; that shortly after their marriage, the father and mother of the plaintiff caused him to be baptized as their legitimate son, although they were well aware that such was not the fact; that this circumstance led the defendant and the legiti
There is an admission on record that the 'mother of the plaintiff, Marie Fonteneau, was legally married to Joseph Smith about forty two years before that period; that said marriage was dissolved by the death of Smith, on the 23d of January, 1821; that the plaintiff was born on the 9th of February, 1820; and that his mother was married to Jean Baptiste Eloi, on the 5th of July, 1821.
After the trial below had commenced, the plaintiff’s counsel moved the court to be allowed to strike out the averment in his petition that Jean Baptiste Eloi was the father of the petitioner, which averment he declared, under oath, had been made by him through error and an imperfect knowledge of the circumstances of the case, and that he had forgotten, until the petition was read that morning, that it contained such a statement. This motion was "opposed, but the judge allowed the amendment to be made; whereupon, the defendant and intervenors took a bill of exceptions. Their counsel urges, that this amendment was illegally permitted, on two grounds, to wit: 1st, because it changed the substance of the -action and issue joined; 2d, because a fact admitted in the plaintiff’s petition, cannot be retracted or withdrawn, unless it is prov-ed to have been made through an error of fact. If the mere question of practice, presented by this bill of exceptions, was to be considered, there would be much reason to doubt the correctness of thfe decision complained of, although, perhaps, even then the amendment might have been properly allowed, under the peculiar circumstances of this case. The subject matter of the averment was one of which neither the plaintiff, nor his counsel, could have any personal or positive knowledge, but from the view which we
Our attention has been drawn to another opinion of the judge, rejecting documentary and oral evidence, offered by the intervenors, to prove that the plaimiff is not the legitimate son of Marie Fon-teneau, their mother, and that they alone are her lawful heirs. ' We think that the judge decided correctly. The plaintiff having been born during the first marriage, Joseph Smith, his lawful father, could alone, under particular circumstances, dispute his legitimacy. Not having done so, although he survived the birth of the plaintiff much longer than'the time prescribed by article 210 of the Civil Code, it is not competent either for the defendant, or the interve-nors, to raise the contest now. The right to disavow and repudiate a child born under the protection of the legal presumption, pater is
Judgment affirmed.