Succession of Guilbeau

25 La. Ann. 474 | La. | 1873

Howell, J.

In March, 1870, Theodore Devalcourt was appointed •administrator of the succession of Leontine Guilbeau, deceased wife of Augustine Guidry, and within six days thereafter he gave bond and •entered upon the discharge of the duties of his office, and so continued to the knowledge of the creditors and heirs, until in February, 1872, when, upon the ex parte application of some of the heirs and the husband, his appointment was canceled on the ground “that he failed •and neglected to furnish the security or give the mortgage required by law, and that more than ten days had elapsed since his appointment,” and one of the said heirs prayed to be appointed administratrix. To this demand, which was published, Devalcourt filed an opposition, •and prayed for the annulling of the order canceling his oppointment, •on the ground that it was rendered without citation, notice or legal process of any sort. In an amended petition he averred his inability to give security in the parish of Lafayette, and prayed that the bond already furnished by him be accepted.

Prom a judgment on these pleadings, sustaining the opposition, setting aside the order annulling the appointment of Devalcourt and •accepting the bond previously furnished by him, this appeal is taken by the party seeking the appointment.

The theory of the appellant is that the bond which was furnished by the appellee in April, 1870, was worthless because the securities thereon did not reside in the parish of Lafayette, where the succession was -opened, and the judge did not authorize the taking of secureties elsewhere, and had not specially accepted the said bond. On the trial of the cause upon the pleadings made, the appellant objected to the introduction of evidence to prove the inability of the appellee, at the date of the bond, to furnish sureties in the parish of the succession, and to ■establish the sufficiency of the sureties on the said bond, upon the grounds, first, that it was too late, and could not be admitted to the prejudice of appellant’s action in the premises, and secondly, that it could not be received at' this stage of the proceedings, and the judge alone had by law the right to pass on the surety.

The objections that were made are not sufficient to exclude the evidence under the circumstances. Irregularities are patent in the proceedings, but the particular proceeding, in which these objections are raised, is not an action for the removal of the appellee, as was in the case of the succession of De Flechier, 1 An. 20, cited by ’the appellant, and therefore no action of her’s in the premises could be prejudiced by the evidence offered. The appellee had already been removed in an ex parte proceeding, and he was, by the pleadings thus forced on him, put in the position of the attacking instead of the assailed party, and to avoid multiplicity of suits, if for no other reason, we would be .inclined to permit Mm to do what he might have'the right to do in a •direct action for his removal; based on the ground of the alleged irregularity and insufficiency of Ms bond. It may be further said that the law (Revised Civil Code 3042) which says the judge alone shall pass •on the sufficiency of the surety tendered of persons residing out of the ■parish, also authorizes him to require such proof as he may deem ■necessary. We conclude, as said above, that the judge did not err in overruling the objections as set up.

Nor do we find such error in the judgment appealed from .as to require its reversal. The order removing the appellee, Devalcourt, was a nullity, having been made without citation, notice or appearance. He had been appointed, had qualified, furnished a bond and caused inventories to be made, and it there was informality or insufficiency in such acts or proceedings, which would authorize a removal, this could ■be accomplished only in a direct action by petition and citation. C. P. .1017, 1018. The record does not enable us to say that the judge improperly accepted the bond, of the sufficiency of which he seems to be satisfied. We do not regard the bond as furnished in the first instance, as a nullity. There was, at least, a prima facie compliance with the .requirements of the law, which should have been regularly attacked, if •deemed insufficient.

Judgment affirmed.