32 La. Ann. 97 | La. | 1880
Lead Opinion
The opinion of the court on the motion to dismiss, was delivered by Manning, C. J., and on the merits by Spencer, J.
On Motion to Dismiss.
A compromise or arrangement was made by the tutrix of the appellant of matters affecting her interest in the succession of her grandfather which was ratified by a family meeting and a judgment of homologation entered thereon. Marie Forstall, the minor, has now attained majority, and brings up these proceedings for our revision by this appeal."
The other members of the family move to dismiss the appeal on the grounds that an appeal does not lie from this judgment of homolo-gation because the minor is concluded by the deliberations of the family meeting, and the judgment ratifying them, and 2dly because these proceedings are assimilated to that of a suit wherein there was a judgment confessed.
These grounds are not tenable. It may be, that upon a judicial examination of these proceedings, it will be found that the appellant is ■concluded, but she certainly has the right to have that judicial examination made, and she cannot be turned out of court upon a mere motion to dismiss. In a former case it was said by this court, “ The power of the District Court to order a family meeting and to approve a transaction or compromise relating to the interests of minors, recommended by such meeting, may well be inquired into when the whole case is .before the court.” Freret vs. Marigny, 8 La. 503.
In a case involving the same principle, reported in the Journal du Talais for 1858, p. 178, the court say, “ attendu que le jugement qui statue sur une demande en homologation d’une transaction dans laquelle un mineur est interressó est un veritable jugement, statuant quelquefois sur des intéréts d’une grande importance;, qu’il est impossible de n’ad-mettre en ce cas qu’un seul degró de juridiction, et de decider qu’il ne peut pas étre attaqué par la voie de l’appel par la partie qui n’a pas la droit de prendre celle de l’opposition; attendu que les conclusions prises
We know of no precedent for the dismissal of an appeal such as this upon grounds similar to those urged here.
The motion to dismiss is denied.
Opinion on the Merits
On the Mehits.
This appeal is taken by Marie Emma Eorstall, an emancipated minor, from a judgment and decree homologating the deliberations of a family meeting and ratifying a compromise made on her behalf by her mother and natural tutrix.
The minor was the grand daughter of the late Edmond J. Eorstall, and by representation of her father, one of his heirs.
In February, 1877, the tutrix presented a petition to the Second District Court of Orleans, wherein she represents :
“ That her said ward is an heir, by representation of said Henry J. Forstall, of her deceased grandfather, Edmond J. Eorstall; that the succession of said Edmond J. Eorstall being involved in expensive litigation and threatened with a protracted legal contest, it was deemed by the heirs of Edmond J. Eorstall to be to the interest of all parties to effect a compromise: That accordingly an act of compromise, a copy of which is filed in No. 34,360 of this Court was executed before Theodore Guyol, notary, on the 27th of November, 1876, in which petitioner appeared and acted in her said capacity of natural tutrix, representing her said minor daughter.
“ Petitioner now prays that a family meeting be convened before Theodore Guyol, notary, for the purpose of ratifying or rejecting said compromise, and that J. J. A. Plauche, undertutor, be notified to attend to the same.”
The judge ordered the convocation of the family meeting to be held before Guyol, notary. The meeting was held, and the procés verbal thereof recites as follows :
“And the said family meeting having thus taken full cognizance of the said petition and order of court, and also of the said act of compromise which I, the said notary, carefully read and explained to them,
On 21st February, 1877, the tutrix filed a petition for homologation of these deliberations, the procés verbal of which she annexed.
On same day the judge homologated the proceedings, and ratified and confirmed the compromise.
Thjs is the decree appealed from and now before us on a statement of facts made by the judge, there having been no note of evidence or list of documents taken on hearing the application for homologation. The statement of facts by the judge is as follows :
“That, when the judgment rendered on the 21st of February, 1877, was rendered, as the record in this case shows, there was no evidence before me, except the copy of the proceedings of the family meeting, approved and homologated by said judgment. The act of compromise, referred to in the proceedings, was never before me, and was never filed, that I am aware of, in this case, until made part of the petition of appeal this day filed.” New Orleans, February 21,1878.
Ve have already decided in this case, on motion to dismiss, that an appeal lies from the judgment in question. The correctness of that judgment must be tested by and on the record and proof presented to the court below. Where it appears affirmatively that a document found in the record was not in evidence before, or considered by, the lower judge, this court certainly cannot consider it, though invited by counsel to do so. That would be trying here another and different case from that tried below. It would be an assumption of original jurisdiction by this court. We cannot therefore consider the act of compromise which appellant has annexed to her petition of appeal.
Nor is it necessary for us to inquire into the effect of the decree appealed from upon the rights of third persons, not parties to the judicial proceeding in question. That will be a question for future consideration, when third persons are sought to be disturbed. The sole question before us is, did the judge a quo correctly decide when, upon the record and proof before him, he homologated and confirmed the compromise mentioned ?
We have seen that there was nothing before him showing the nature, extent, or value of the minor’s rights, or in what way they were involved or affected by the alleged litigation among the heirs of Forstall, or indicating how, or why, or in what way, the minor would be benefited by the compromise. The confirmation of the compromise was a judicial act. It involved the exercise of judgment, and should rest upon facts satisfying the judge of the justice of the demand. The judge cannot act
Upon the record and showing before him, the judge should have refused the decree of homologation and confirmation.
It is therefore ordered, adjudged, and decreed that the order and decree appealed from is annulled and reversed, and the application for homologation and confirmation of the compromise mentioned is rejected at the costs of tutrix in both courts.