Linton v. Moore

4 La. 434 | La. | 1832

Martin, J.,

delivered the opinion of the court.

The plaintiff having been appointed to represent an absent heir of a person whose estate was administered by the defendant, stated the estate was much involved, and a long time would be required for its settlement; and in as much as his appointment deprived him of the faculty of being employed against the estate, he claimed three hundred and one dollars, as a remuneration for his services. The defendant pleaded the general issue. The plaintiff had judgement for eleven dollars, and appealed.

The appellee must allege the injury done him by the judgement, and pray that it be amended, in his answer, or he will not be relieved on the appeal. The law allows remuneration for the counsel of absent heirs, for services rendered, but no compensation for the loss of the oportunity of being employed against the estate claimed by the heirs he represents.

The statement of facts admits the plaintiff’s appointment; states the amount of the inventory to be ten thousand four hundred and sixty-six dollars and sixty-six cents.

The defendant’s counsel has contended, that the counsel of an absent heir is entitled only to emoluments and fees proportioned to the pains taken in the performance of his duties, and they are not to be allowed but on proof of the services rendered, and of the value thereof. L. Code, 1213. And in the present case there is no proof of any service: that the plaintiff was appointed in November, 1831, after the inventory was filed, and instituted the present suit in May following, and before the administration was closed and settled, and a tableau of distribution; consequently, the suit is premature and ought to be dismissed.

As the appellee has not alleged any injury done him by the judgement, and prayed that it may be amended, in his answer, we cannot relieve him from the payment of the sum awarded to the appellant.

On the merits we think with him, that the plaintiff has not proven, nor even alleged any services rendered by him, and from the state in which the succession was, both at the time of his appointment and at the time of the inception of the present suit, it is not to be imagined he rendered any. Indeed, his claim is professedly to be indemnified for the chance he has lost of being employed against the estate, and not for any services pretended to have been rendered to the absent heir. The law allows remuneration for services rendered, but no compensation for the loss of the opportunity of being employed against the estate.

It is, therefore, ordered, adjudged, and decreed, that the judgement of the Court of Probates be affirmed, with costs in this court; the costs to be paid by the appellant.