55 So. 552 | La. | 1911
Albert Derigny, the de cujus, died on July 20, 1904, leaving a will by which several bequests were made, and Augustine Landry was constituted residuary legatee. Two days after his death, July, 22, 1904, Augustine Landry presented the will in court, and asked that it be probated and ordered executed, and that letters testamentary issue to her, and on the same day an order was made accordingly. An inventory was made showing $32,098.05 of assets; and on July 25, 1904, letters testamentary issued to her. Seven days later, on August 1, 1904, on her petition, an order was made authorizing her to discharge the legacies. These were $5,000 to the Société de Bienfaisanee; $1,000 to the Little Sisters of the Poor; $2,500 to the Charity Hospital; and a lot of ground to Mrs. Agnes Castignat. Eight days later, on August 8, 1904, on proof of delivery having been made of these legacies, she was, on her ex parte petition, sent into possession as residuary legatee. One year and nine months later, on May 25, 1906, certain persons, claiming to be the cousins and legal heirs of the de cujus, Albert Derigny, filed a suit against Augustine Landry and said legatees to have the will decreed to be null and to recover the property of the succession. On April 16, 1907, the plaintiffs in said suit were recognized as the legal heirs of the decedent, and entitled, in the absence of a will, to inherit, reserving, however, the question of the validity of the will. On June 26, 1907, the said suit to annul the will was dismissed, on motion of the plaintiffs for the reason that the parties had compromised. On August 20, 1908, the suit involved in the present appeal was filed. It is by Marguerite Mercier. She alleges that she is -the first cousin, or fourth degree relation, of the decedent, whereas the persons who have heretofore claimed to be the sole legal heirs of the decedent were related to him only in the sixth degree, and that, therefore, the-property of the succession belongs to her. She alleges the nullity of the will, and of the judgment probating it and putting Augustine Landry into possession, -and also of the judgment recognizing the said sixth-degree relations as heirs. She makes the said persons and Augustine Landry and the said legatees parties to the suit, as well as a number of other defendants who have in the meantime acquired by purchase different lots of ground belonging to the succession. The plaintiff has compromised with all these parties, and the suit has terminated as to them, except with Anthony J, Rossi, who is now the sole defendant.
Plaintiff contends, however, that the defendant, Rossi, is estopped from contesting the regularity of the said commission to take testimony. The estoppel is sought to be derived, as follows: Rossi is the successor in title of C- & H. Gardes. He acquired from them by purchase. The purchase took place ■on May 29, 1908, some three months before the filing of the present suit, and was by act duly recorded. The plaintiff, not knowing of this transfer of the property by the Gardes to Rossi, brought her suit against the Gardes. Rossi appeared as the attorney of the Gardes, his vendors; and, instead of at once informing the court of the transfer having been made and of his clients being no longer owners of the property, filed .exceptions in their behalf tending to the dismissal of the suit. The exceptions were overruled; and he then filed an answer with proper allegation of his clients being no longer owners of the property. The commission for taking the testimony was taken out before the filing of said answer; and due notice was served on C. & H. Gardes, the clients of Rossi.
The fallacy Of all these arguments lies in the false assumption which they make that Rossi owed plaintiff any duty; in other words, that the attorney of a defendant owes the duty to bring a light or extend a guiding hand to the plaintiff, if he sees plaintiff floundering in the dark. Nay, that the attorney of the defendant must be careful how he pleads, lest he mislead the plaintiff. But, as we understand the situation, litigants have no right to expect, and do not, in fact, expect any assistance from the attorney of the other side. If the other side is possessed of useful information which they have not, they do not expect the other side to give it. And, if they do not .expect such assistance from the opposing litigant, still less do they expect it from his -attorney. Litigants in court deal at arms’ length with each other;
We find ourselves constrained to dismiss plaintiff’s suit; but only as of nonsuit.
Judgment set aside, and suit dismissed as of nonsuit at plaintiff’s cost.
On Rehearing.
The rehearing was granted in this case for the further consideration of the question “whether an attorney is bound, with respect to his individual interest,, by proceedings for the recovery of property in a suit in which he represents a defendant, when he, the attorney, is the real owner of the property”; the court haying been under the impression that plaintiff and his counsel were ignorant of • the' fact ’ that the' present defendant', Rossi, who was then representing the parties who had originally been made .defendants, was the owner of the property • in controversy. It appears, however, that plaintiff’s attorney, Mr; Cotonio, had been advised of Rossi’s acquisition of the property before the present suit was instituted, and that he ■ so ■ admitted in the course of certain testimony given by him on the trial,, from' which it follows that the contention, that Rossi’ is now estopped by any supposed silence on that subject is entirely without foundation in the fact; and counsel seem to concede that such is the case, as they have abandoned the contention. The judgment heretofore rendered is therefore reinstated, and made the final judgment of the: court.'