Kellar v. O'Neal

13 La. Ann. 472 | La. | 1858

Spoeeord, J.

We find the following facts stated correctly in tho opinion of the District Judge.

“ The defendant, O’Neal, formerly tutor of the plaintiffs, filed his final account to Henry and David C. Kellar, the two eldest brothers, on the 29th April, 1851. Previously to the filing of said account, the said Henry and David- executed the following written acknowledgment and consent: ‘We, I-Ienry and David C. Kellar, have had the above account, rendered to us by our tutor,' James M. O’Neal, for ten days in our hands, and having thoroughly examined it in all its items and particulars, find it correct and approve the same. We further agree that the said James O’Neal shall have the same approved and homologated as the law directs.’

On the 9th of June, 1851, a final judgment of homologation was rendered upon said account, so far as Henry and David C. Kellar are interested.

On the 16th July, James Kellar, the younger brother, then an emancipated minor, made the following written acknowledgment and consent: ‘ I have examined the above account, rendered by my tutor, James M. O’Neal, to Henry Kellar and David C. Kellar, likewise under his tutorship, and find it correct, and accept it as though rendered specially to me, and agree that it be homologated as the account rendered to me.’

On the 21st August, 1851, all the plaintiffs signed a receipt in favor of defendant, for the balance due them on settlement as tutor

On the 18th of February, 1852, another judgment was rendered, homologating tho final account of O’Neal, tutor, as to all these plaintiffs.”

Thus much of the facts-as detailed by the District Judge.

The plaintiffs brought this action by way of opposition to the aforesaid final account of their tutor, ignoring altogether these two judgments of homologation.

The preliminary question is, whether they could thus treat those judgments as absolute nullities, or were bound to attack them directly, before contesting the correctness of the account homologated thereby, or calling for a new one from their former tutor.

The plaintiffs and appellants contend, that these judgments are absolutely void, because they were not personally cited. But their approval and agreement that the account should be homologated as it stood, was equivalent to a waiver of citation and to a consent judgment. It was therefore incumbent upon them to attack the judgments in a direct action, under proper averments of mistake or fraud in procuring their consent, and they could not treat them as mere nullities by filing a simple opposition to the account which had been thus homologated by their consent.

It would also seem, under the authority of Haydel v. Roussel, 1 An. 38, that the plaintiffs should have brought a direct action against their former tutor, to annul their receipt of August 21st, 1851, for the balance due by him to them “ on settlement as tutor,” before being admitted to file an ordinary opposition to the account which they had long previously approved as showing that balance due to them.

It is, therefore, ordered and decreed, that the judgment dismissing the opposition be affirmed, with costs.