Henry v. Keays

| La. | Apr 15, 1838

Bullard, J.,

delivered the opinion of the court.

This is an action to annul a judgment of the District Court, on the sole ground that the court was without jurisdiction ratione materia, and that it pertained exclusively to the Court of Probates, under article 924, No. 14, of the Code of Practice.

There was judgment in favor of the plaintiff, and the defendant appealed.

Upon looking into the pleadings in the first suit, we find that the plaintiffs, Keays and wife, in the right of the latter, demand a partition of certain property, to which she asserts title, partly by inheritance from a deceased sister, and partly by donation from a co-heir. Her title to one-fourth, thus claimed by donation, is denied in the answer, which admits nothing except the death of Framjoise Adelaide, and the heirship of Marie Henriel.te, the plaintiff, for one-fourth of her succession. The answer further sets up a sale of certain slaves, particularly alleged by the plaintiff as forming a part of the property of the succession, and the defendants charge themselves with the proceeds of an alleged sale.

The District Court having succeeded to the Superior Court of the territory of Orleans, is one of general jurisdiction. The Court of Probates, on the contrary, can exercise no power not expressly given to it by statute, and is, therefore, one of limited jurisdiction. By the Code of Practice, the authority of that court is exclusive to ordain and regulate partitions of successions, even among persons of lawful age, and residing in the state, when they cannot agree upon the partition and the mode of making it. Under this grant of power, this court has thought that the Court of Probates might well act upon certain questions, arising incidentally in the course of the partition, which would more properly belong to the ordinary jurisdiction if presented separately, as in the case of M'Caleb vs. M‘Caleb, in which we held that that court might decide on the character and validity of sales of land and slaves, when the question arises collaterally in the examination of other matters in'which it has jurisdiction. The isame principle was recognized in the case of drill vs. Phillips, 8 La. Reports, 462. 6 Martin, N. S., 304.

The District morityto ordain p"rtitionofpro-p«rty, held in Sr fitie than cession*'at The suit of a co-pro-pnetor. It is the ordinary ac-*u^dmidommum

The authority of the District Court, to ordain and regulate a partition of property, held in common by other title than hereditary succession, at the suit of a co-proprietor, can hardly be questioned at this time. It is the ordinary action de communi dividundo. The general principles which govern both actions are substantially the same.

Much of the difficulty, confusion and perplexity, of which , . , . . . , ,. , r . X our learned and ingenious brother of the District Court, complains, (certainly the result of sincere conviction, inasmuch as he has in this case, annulled a judgment pronounced by himself,) have arisen from the act of 1825, which has, on more than one occasion, been brought to our attention. That act confers on the District Court authority to order partitions of property held in common. The expression used in the statute is sufficiently general to embrace all joint property, by whatever title it may be held. Hence, this court concluded, that in some cases of partition, the jurisdiction of the two courts might be concurrent. Admitting in ordinary cases, that, where the thing to be partitioned is one entire succession, and the parties hold by the same title as heirs, the authority of the Court of Probates is conclusive, yet in the case now before the court, such is not alleged to he the fact. As to the fourth claimed by the plaintiff under the donation, although she is a joint owner with the defendants, she does not claim as heir of the deceased, but in virtue of the donation. To that extent she sets up pretensions as a stranger to the succession. If we are bound to give any effect to the act of 1825, if it be not a dead letter, we cannot but think that the case now under consideration involves some questions proper for the ordinary jurisdictions.

We consider it a sound principle, that the ordinary general jurisdiction should not be restricted, except by the unequivocal will of the legislature, but in relation to the Probate and District Courts, there is another reason which we regard as worthy of consideration. The trial by jury is deservedly dear to the people. The Probate Courts proceed without a jury. The pleadings in this case present more than one question of mixed fact and law, which, if either party had required it, might well have been submitted to a jury. The existence of a donation, which, in part, forms the basis of the plaintiff’s action, is denied,- and a sale of slaves under which the defendants assert title, is also substantially alleged and denied.

The ordinary tiorT'dlouid'not be restricted, unequivocal will ture*6 les‘sla" The pistrict Sithoutj'irisdiotion of partition andjoirtownei-s property™f fuU age, inherited from a deceased sister.

It is true, the jurisdiction and powers of those two courts, under the existing laws, as we understand and interpret them, run into each other in such a manner that it is difficult to draw the clear line of demarcation. Each has the power to decide upon questions arising incidentally and collaterally, which, if prosecuted in an isolated form, might pertain more properly to the other. We do not, however, consider the settlement of accounts among the co-heirs, upon which some stress has been laid in this case, as presenting any serious difficulty. Such settlement of mutual claims and demands growing out of the thing to be partaken, and the relation of the parties in reference to their joint ownership, forms an incident in every partition, and is to be adjusted in the course of the proceedings which follow the judgment ordering a partition, and is a very different thing from the settlement of a succession, so far as the interest of third persons is concerned. It necessarily embraces the emoluments derived from the common property, by one or more of the co-proprietors, useful improvements made, or expenses incurred for the common benefit. All parties are considered both as plaintiffs and defendants, in relation to all matters of common interest in controversy.

Upon the whole, we conclude, that the District Court was not wholly destitute of jurisdiction, in relation to the matters at issue, in the case in question, and that the court erred in annulling its judgment. But we do not consider this a case in which we can give judgment on the injunction bond, under the act of 1831, because we do not see how a writ of fieri facias could well issue, to enforce the judgment first rendered, which was not for a specific sum of money, but .which merely ordered the sale of two slaves, and directed the pro- ... ceeds to be brought into court for distribution.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and that the suit be dismissed, and that the appellees pay the costs of both courts.