30 La. Ann. 752 | La. | 1878
Lead Opinion
The opinion of the court was delivered by
This peripatetic suit appears to be as vexed and unhappy
The parish judge being recused on account of personal interest, the district judge was called to preside in the parish court, whereupon Ober, the intervenor, moved and the court ordered, that so much of the plaintiffs’ answer to the intervention as seeks to set aside the title of Ober to the lands purchased by him under the will of decedent and to enforce a mortgage on the same be stricken out and disregarded as not.germain to this action and as being- matter over which the parish court had no jurisdiction; and further ordered that the issues be confined to'the nullity of the will and the probate thereof and the question of “res adjudicatci” raised in the answer of the defendants and the petition of intervention. The plaintiffs’ counsol filed an exception to the authority of the district j udge to take cognizance of this case in the parish court and prayed that it be transferred and assigned to the docket of the district court, there to be tried by jury, a right to which is claimed by the plaintiffs. The judge overruled the exception and motion to transfer, and it is from this ruling and that to strike out and disregard portions of the answer to the intervention that the present appeal is taken. The plaintiffs’ counsel has favored us with an elaborate-argument and reference-to authorities, most of which we consider it unnecessary to review.
This suit proper was simply to annul a will and the probate of a will and to have certain persons plaintiff declared heirs and entitled to take as such. This was purely a probate proceeding- and cognizable alone by the parish court in which the succession was opened. It was a matter incidental to the opening and settlement of the succession. Cdn
A claim in reconvention can not alter the rule or affect the jurisdiction of the main action. Flood vs. Shamburgh, 3 N. S. 622; Duncan vs. Duncan, 14 L. 556. When the jurisdiction of the court where the suit is brought has once attached it will be maintained. Bayne vs. Fox and Fox vs. Bayne, 5 R. 2. The demand in intervention must be before the same court in which the original action is brought, and must follow that jurisdiction (C. P. 392) which can not be affected or objected to on account of the intervention. Sec Kenner vs. Holliday, 19 L. 154. The intervention can not affect either the jurisdiction or authorize interference between the original parties or the pleading of exceptions to'dismiss the action. 8 M. 55; 4 N. S. 488; 3 L. 183; 8 R. 123; 3 A. 222. The rights of the intervonor are limited to the protection of his own interest. 5 N. S. 501. If ho have such interest ho may intervene. C. P. 390. In the case at bar this is all that the intervenor has done, and for the protection of that interest he has joined in the defense, and in asking the rejection of the plaintiffs’ demands. He has not asked the probate court as an original or independent matter to pass upon the title to real éstate of value beyond its jurisdiction, but only alleges title in himself to lands conveyed by the will, the maintenance of the validity of which he alleges is essential to his title. The allegation of title to lands is merely incidental, to show interest in the pending controversy and consequently his right to intervene. For this purpose and to this extent the parish court had jurisdiction of the question of title as incidental to the main action to which the intervention was only incidental and subsidiary. C. P. 101. All judges possess the powers necessary for the exercise of their respective jurisdictions, though the same be not expressly given by law. C. P. 130. While therefore the probate or parish corn t could not directly pass upon the matter of title to lands above the value of five hundred dollars, having jurisdiction to annul its own decrees and in the matter of heirship and succession and the validity of the will when directly attacked, it was competent and had jurisdiction to take cognizance of the title so far as it affected the right to intervene and came in question collaterally. “Quando lex aliquid concedit concederá
The case of De Lizardi vs. Gossett, Executor, 1 An. 138, is much relied on by the plaintiffs. One of the creditors of a partnership sued the executor of a deceased partner in commendam in the probate court of Orleans for an unpaid balance of capital promised to the firm of which there were other creditors. The plaintiffs were nonsuited for want of jurisdiction in the probate court to distribute the fund. The case was appealed, and meanwhile, under a change of constitution, the Second District Court of Orleans, having general jurisdiction, became the successor of the court of probates. On appeal, while admitting the want of jurisdiction in the probate court, this court, invoking the authority of article 21 of the Civil Code to proceed and decide according to equity, and assuming the silence of the law on the subject, reversed the judgment below and remanded the case to the Second District Court to take order for the distribution of the fund due by the succession among the partnership creditors.
It appears to us that the jurisdiction of this court being derived solely through an appeal from a court without jurisdiction of the ease it could make no order except simply to review the action of the court below, which was solely on the question of jurisdiction, and that the judgment given on appeal involved the assumption of original jurisdic
The case of Prentice vs. Waters, 3 N. S. 522, was decided under the express provisions of a statute which took away the jurisdiction of the court where the suit originated and conferred it upon another, and the court said that though the legislature had not pointed out expressly the mode of transferring the record, the Tatter court having jurisdiction virtually possessed the means of exercising- its jurisdiction, which must be by the record being sent to it. The appeal was from the rescission of an order to transfer the record to the court having jurisdiction. There is no similitude to the case at bar, and therefore the case quoted is without authority here. The case of Fairniquet vs. Perkins, 7 Howard 167, was of a transfer from the probate to the district court, and the Supreme 'Court of the United States said : “It was a transfer of a litigation by consent from a tribunal confessedly without authority to decide it to a tribunal in every respect competent to take cognizance of the subject matter, whose peculiar provision and duty it was to take cognizance of it. The exception resolves itself at the utmost into matter of form, which the parties were competent to waive, and which they did waive; for it is expressly stated upon the record that the removal of the cause from the court of probates to the district court was by the consent of all concerned.” It can not be pretended that the forms of pleading may not be dispensed with by suitors. This case also originated under the system prevailing in Louisiana prior to the constitution of 1845. In the case at bar both of the essential conditions of that.case are wanting: First, there is no consent, but on the contrary a refusal to consent to transfer; and, second, the court in which the suit was instituted has jurisdiction to hear and determine all the issues germain to it. The case of Gaines vs. Chew, 2 Howard 640, .is against rather than in favor of the position of plaintiffs, as it holds after a recital of the articles of the Code of Practice that the court of probates in Louisiana had exclusive jurisdiction in the proof of wills; “and that where a will had once been admitted to probate, a claim that it had been revoked by a subsequent will, and the latter alone is operative, can not bo made effectually, so as to set up title under the latter will, save in a court of probate.” Of this case it may be also remarked that it originated under the system prevailing in Louisiana prior to the constitution of 1845.
The court below did not err in the present case in taking jurisdiction and refusing to transfer the case to the district court. Neither did it err
It is therefore ordered, adjudged, and decreed that the judgment appealed from be so far modified as to permit the plaintiffs to contest the title of the intervenor only to the extent and for the purpose of disproving any interest in him in accordance with' the principles of this opinion and no further, and that in all other respects it is affirmed, and that appellees pay costs of appeal. ■
Rehearing
On Application fob Rehearing.
This application affects only the question of costs of appeal, with which the appellees were charged by our decree, as is now urged by counsel erroneously. The brief of counsel and the rapid succession in the transcript of the entries in regard to the ruling of the judge a quo on the motion to strike out part of plaintiff’s answer to the intervention and refusing to transfer the case to the district court together with the intimate relation of the two orders led us to consider the appeal applicable to both, and hence as a consequence of the modification of the. former to charge the appellees with the costs.
We had some hesitation at the time in even considering an appeal from the motion to strike out, and only did so at all owing to the relation to and dependence upon each other of the two orders complained of. Intervenor’s counsel however insists, and we think correctly, that the appeal relates really only to the refusal to transfer the case.
Rehearing
On Rehearing.
It is ordered and adjudged that our former decree be so amended as simply to affirm the order appealed from refusing to transfer the cause, and that appellants pay costs of appeal.