37 La. Ann. 741 | La. | 1885
The opinion of the Court was delivered by
This very complicated litigation grows out of the following facts, pleadings and incidents :
On the death of Nathan Pickett, his son, William M. Pickett, was appointed administrator of his succession, with J. B. Gilmer as surety on his bond. After filing two provisional accounts of administration, which were duly and respectively homologated, he presented his third and final account in the year 1866, and he died before any action was had on his said account.
J. P. Harris, who was appointed as administrator of his succession in 1867, proceeded by rule against the heirs of Nathan Pickett for the homologation of the account presented by W. M. Pickett before Ms death.
That proceeding, which is designated under the title hereinabove first mentioned, was met by an opposition from the lieirs of Nathan ■Pickett, asking for judgment against the succession of the deceased administrator in a very large amount. That opposition was filed in March, 1868. Some time before that, the heirs of J. B. Gilmer, who had died in the meantime, brought an action against the heirs of Nathan Pickett looking to the homologation of the final account of administration of W. M. Pickett, and to the cancellation of the latter’s bond, which liad been signed by their ancestor, J. B. Gilmer.
This suit was not brought to issue before the month of November, 1882, when the heirs of Nathan Pickett filed an answer, in which they
These two contestations being yet undecided in 1879, the Pickett heirs brought suit against the Gilmer heirs, on the administrator’s bond signed by Gilmer, for Sg140,022 80-10Ü. This is the suit which is reported in 32 Ann. p. 991, under the title of Thomas S. Pickett et al. vs. Mattie G. Gilmer et al., and which was dismissed on the double plea of prematurity of action and of Us pendens.
In the meantime, J. P. Harris having died, Thomas G. Pickett, one of the heirs of Nathan Pickett, was appointed administrator of the succession of W. M. Pickett.
Some time after the decision in the 32d Annual, in January, 1881, the heirs of Nathan Pickett, including Thomas G. Pickett, filed a proceeding which they term a “ motion of revival” in the suits which form the title of this decision, and moved for service on all the heirs of J. B. Gilmer and on the administrator of the- succession of W. M. Pickett. Their real object was to bring to trial the two suits above referred to, and to bring into court the representatives of such of the original parties, on both sides, as had died since the institution of the two suits.
Their proceeding was met by numerous exceptions on the part of the Gilmer heirs.
The district judge maintained two of those exceptions, and the present appeal is taken by the Pickett heirs from his judgment thereon. Through an assignment of errors, appellants’ counsel first attacks the nullity of the judgment on the ground that the judge has failed to give reasons therefor.
In his judgment the judge says : “On considering said exceptions and the argument of counsel thereon, it is by reason of the law ordered,” etc.
On inspection of the two exceptions, which will be hereinafter stated, it appears that both presented bare questions of law patent on the face of the record, and hence a reference to the law, under those circumstances, can be held sufficient. Hemken vs. Farmer, 3 Rob. 155 ; Powell vs. O’Neall, 24 Ann. 523.
We do not wish to be understood as sanctioning the form of this judgment even on a simple question of law, but the ends of justice, in the interests of appellants themselves, require that we should examine the judgment on its merits; and hence we feel authorized to give a liberal construction to the point at issue. It has been held that an
The exceptions maintained by the lower court were as follows :
1st. That Thomas G. Pickett, as an heir of Nathan Pickett, could not sue himself as administrator of the succession of his deceased brother.
2d. That the demand was premature as against the heirs of J. B. Gilmer.
Appellants’ counsel charges error in the judgment on the ground that by subsequent pleadings, between the filing of the exceptions and the trial of the same, he had stricken out those portions of Iris prayer which called for service on the administrator of W. M. Pickett’s succession and against the heirs of Gilmer, and hence he argues that these two exceptions were no longer before the court.
He may be correct in that contention, but we find no necessity for its discussion in order to reach a just conclusion in the premises.
Eor the sake of argument we accept his theory, and we concede that on trial of the exceptions there was no prayer to bring either the administrator of the W. M. Pickett succession or the heirs of Gilmer into court. But counsel forgets that those parties are the only plaintiffs in the two suits which he was seeking to “revive,” and his amendment therefore stripped his motion of all demand for relief as regards the making of necessary parties. After his amendment of non-suit, as he terms it, his prayer was therefore to “revive” a suit without plaintiffs ; for his clients, as he contends correctly, were defendants in both suits. This would be a fair illustration of the play of “Hamlet, with Hamlet left out.”
But he argues that, by voluntarily accepting service of the petition of “ revival,” Thomas G. Pickett, administrator of the succession of W. M. Pickett, legally became the plaintiff in the suit filed by his predecessor, Harris. Granted; but he is a defendant and an opponent in that very suit, and thus he seeks to perform the feat of being plaintiff and defendant in the same suit. And right there our jurisrpudence interposes an insurmountable obstacle in his way, and befalls under the effect of the first of the two exceptions which wm now have under consideration. It is now well settled in law, as it stands to reason, that an administrator cannot sue himself, and “viceversa.” Succession of Farmer, 32 Ann. 1037 ; McKnight, Administrator, vs. Calhoun & Lane, 36 Ann. 408. Appellants are therefore impaled on either horn of this dilemma: Their proceedings have either made Thomas G.
On' the second exception, the amended pleadings specially exclude any demand as to the Gilmer heirs; hence that suit stands without all the necessary parties, and it certainly cannot proceed in its present attitude.
As the other exceptions interposed by the Gilmer heirs have not been passed upon by the court a qua, they are not before us for review on the present appeal, and benee they remain undisposed of.
Under our understanding of the judgment of the lower court, these may not be the reasons which actuated the judge iu bis decree; but the judgment of dismissal of the motion, with the reservation of appellants’ rights to institute proper proceedings, has done full justice to all parties aud meets writh our approval.
Our rules of practice point out several modes by which these appellants can reach the issue which they are seeking to test, but it is not our province to indicate them.
Judgment affirmed.
