Guidry v. Guidry Heirs, 16 La. 157

Guidry v. Guidry Heirs

16 La. 157 | La. | 1840

Morphy, J.,

delivered the opinion of the court.

The plaintiff has sued out an injunction, to arrest the execution of a judgment obtained against him, under the following circumstances: Pierre Guidry, the father of the parties to this suit, married twice, and had children by both marriages. Marguerite Miller, his second wife, died in 1822, leaving a large estate, to be partaken between her husband and heirs. The plaintiff failed in 1824, and placed on his schedule the heirs of Marguerite Miller, as creditors, for about two thousand dollars, which, he supposed, was the amount of his indebtedness to the estate, after deducting the sum accruing to him as one of the heirs. Pierre Guidry died in 1825. Shortly after, the plaintiff, together with some of his co-heirs, appointed Isaac L. Baker as their agent and attorney in fact, “for the settlement of the estate of Pierre Guidry, their father; to collect and receive all such sums of money as may be coming to them from said estate, and to transact for," .... . , . . _ and in then* name, all such things as may be necessary for liquidating such succession.” In 1827, defendants, as heirs 0f p¡erre Guidry by the first marriage, brought an action for . . . , . , . , the partition of their fathers estate, against their co-heirs of the second marriage ; and prayed, at the same time, for a gnai liquidation of the community, which had existed be-1 , ' — tween Pierre Guidry and his wife. To this petition an answer was hied, by Isaac L. and Joshua Baker, whereupon, the parish judge, acting ex-officio as notary public, under an order of the court below, proceeded to a settlement of both the estates of Pierre Guidry and Marguerite Miller. Prom an adjustment of the accounts in said successions, it appeared *161that the plaintiff stood indebted to the estate of Marguesite Miller, in a sum of seventeen hundred and sixty-three dollars and twenty-five cents, and was entitled to receive from that of his father, six hundred and twenty-two dollars and ninety-one cents. In his judgment of homologation, the judge below blended the two estates, and proceeded, as he expresses it, “ to regulate the final balances due to each of the heirs of both estates, after compensating the balances in favor of any of the heirs of either estate, by the amount found due from such heir,as debtor to the other estate;” he accordingly decreed the plaintiff to pay to the other heirs, eleven hundred and forty-two dollars and thirty-nine cents ; being the difference between the amount due to him, from his fathers estate, and that due by him to the succession of Marguerite Miller, his mother. It is to arrest the execution of this judgment, that plaintiff has taken out this injunction.

pa^jo’ifnd®aiiS and bindjn^aii must be cited or "he^forma/itfis prescribed by sued to authorófliomoíofatkm j“jlljldjn“ake . Before plainferi facias, they theii6judgment to the defendant,

The plaintiff urges in support of his action :

1. That the judgment obtained by defendants is not binding on him, because he was never legally made a party to it; find that none of the formalities required by law, to render the partition legal and final, have been observed.

2. That the funds accruing to'him from the estate of his father, after his failure, could not be applied to pay his debt

to his mother’s estate, from which he had been duly discharged.

It is clear, that the plaintiff has never been regularly made a party to the proceedings had in the estate of Marguerite Miller, his mother ; his power of Attorney to Isaac L. Baker, authorized the latter to represent him only in the settlement of the succession of Fierre Guidry, Sen. As to his rights i'n the estate of his mother, which .had accrued before the filing of his bilan, the plaintiff could not stand in judgment to prosecute or defend them. . They had passed to his creditors, who alone could assert them, contradictorily with the other heirs. But, even admitting that Baker could have legally represented the plaintiilj in the partition of his mother’s estate, as contended for by defendants, his powers were at an end in *1621830, when he died; and from all the proceedings had sub-' sequently, before the notary who made the partition, it does not appear that the plaintiff ever received the written notice required by article 1269 of the Louisiana Code, to enable him to attend at the partition ; no process verbal seems to have been drawn up, showing that any of the heirs were present; nor does it appear that the plaintiff was summoned, according to article 1296, to show cause why the partition should not be approved. The compliance with all these formalities alone, could have rendered the partition final, and authorized a judgment of homologation; Louisiana Code, art. 1299. But, independent of all this, we do not find that the defendants had entitled themselves to a fien facias, by having their judgment served on the plaintiff. This view of the subject, precludes the necessity of examining the other points in discussion.

So, where a judgment of partition, decreeing a balance due by an heir to his coheirs, has not been regularly notified to him; and he was not made a party to the proceedings had in making the partition, he will be entitled toaperpetualinjunction against such judgment.

It is, therefore, ordered, that the judgment of the court below be reversed and annulled, and that the injunctioi^ taken in the premises, be made perpetual; the defendant^ and appellees paying costs in both courts. '