Reynolds v. Horn, 4 La. Ann. 187

Reynolds v. Horn

4 La. Ann. 187 | La. | 1849

The judgment of the court (Rost, J. absent,) was pronounced by

Etjstis, C. J.

In 1840, a final judgment was rendered against Moses Horn and others, stockholders of the late Feliciana Steamboat Company. On an appeal from this judgment, taken by two of the defendants, Laurent Millaudon and James Dick, it was reversed as to them. In 1842, Moses Horn died, in Tennessee, where he then resided, and by his will constituted B. W. Cotton, Mary C. Cotton and Emily Dickson, his residuary legatees. The plaintiffs took a rule against these parties to show cause why execution should not issue against each, for one-third the amount of said judgment thus obtained against the testator. *188Being ;all absent, a curator ad hoc was appointed by the court to represent them. The legatees had received from the executor of Horn’s estate their share of the effects of the succession, which was settled under a decree of the parish court of "West Feliciana, in June, 1844. An attachment was attempted to be levied on a note belonging to them in the hands of their attorney, but the sheriff did not obtain possession of the note, nor was there any process of garnishment against the party who held it. The district judge discharged the rule, considering that the defendants were not properly in court by the curator ad hoc appointed to represent them, nor by the attachment, which he did not consider as reaching the property attempted to be attached. From this order discharging the rule the plaintiffs have appealed.

The mode of proceeding of the plaintiffs cannot be sustained. Their remedy against the defendants as representing Moses Horn and responsible for his debts, is by an action in tire ordinary form. There is no warrant for the summary mode ef calling upon the parties, who have never resided within the State, to show cause why execution should not issue against them on a judgment obtained against their testator. The administration of the succession in this State being closed, and the recourse against the defendants which the plaintiffs undertake to exercise being personal and involving matters en pais, the plaintiffs have their right of action, but we are not aware of any law which would authorize the mode of proceeding they have adopted. Such being our views, we think the district judge did no.t err in discharging the rule. • Judgment affirmed.