88 So. 687 | La. | 1918
Lead Opinion
On Motion to Dismiss Appeal.
This case comes up on appeal by the administratrix of the above-entitled. succession from a judgment maintaining an opposition to her account, filed by II. T. Cottam & Co., Limited, which judgment recognizes that firm as entitled to be paid the sum. of $219 “with preference and priority over others,” as balance due, on account for “goods and merchandise” alleged to have been sold to the deceased. The appeal was first taken to the Court of Appeal, parish of Orleans, but appears to have been transferred, by order of that tribunal, to this court, upon its appearing that the ¿mount to be' distributed, as shown by the inventory of the succession, exceeds $2,000. Opponent moves to dismiss the appeal upon various .grounds which will be considered in the order in which they are stated in the motion, to wit:
“Articles 98 and 99 of the Constitution, in creating the Courts of Appeal throughout the state, describe them as the Courts of Appeal, and then, in this connection, describe the Court of Appeal for the parish of Orleans. Throughout these articles, article 100 and subsequent, articles of the Constitution, this latter tribunal is thus described. It would therefore appear that Act 19 of 1912, by its failure to describe the Court of Appeal for the parish of Orleans, does not include it, and only applies to the other Courts of Appeal throughout the state.”
If the premises stated in the foregoing quotation were well founded, the conclusion drawn therefrom would have a better support; but in that case, the framers of the Constitution of 1S9S would appear to have created a Court of Appeal for the parish of Orleans without conferring upon it any jurisdiction ratione materUe, save of appeals from the “city courts,” and the judges who have presided in that tribunal during the past 20 years, the members of this court who have reviewed, and the litigants who have been affected by, their judgments, would find occasion for serious reflection.' There are, however, some errors in the statement which make a difference in the result. Articles 9S and 99 create no Courts of Appeal; -they merely, “except as otherwise provided” in (the Constitution), confer jurisdiction upon the “Courts of Appeal,” in which article S4 declares that the judicial power shall be, in .part, vested, and under the title “Courts and Officers of the Parish of Orleans.” article 181 et seq. create, and make .certain provisions concerning, “a Court of Appeal
It is said that the General Assembly could not, by Act 19 of 1912, confer upon the Court of Appeal (for the parish of Orleans) a “concurrent jurisdiction over . the transfer of causes with the' Supreme Court.” The answer is that it does not purport tó do so; it provides, to the contrary, that, where an appeal is returned to one of those courts, which is properly cognizable in the other, the court to which it is returned shall order its transfer to the court in which the jurisdiction is vested, but that the question' of jurisdiction is to be determined in the last resort by the Supreme Court.
The motion filed in the Court of Appeal, however, formed nd part of the record, a transcript of which was . required for the purpose of the appeal, and, if it had, its-absence from the transcript would not authorize the dismissal of- the -appeal. The party who needs it is at liberty to produce it. Act 229 of 1910, p. 3SS. The question whether this court is vested with jurisdiction of the appeal is to be determined by (he circumstances disclosed by the transcript, rather than by the. allegations .of .the litirgants. Wunderlich v. New Orleans R. & L. Co., 143 La. 626, 79 South. 80. It appears from the transcript in this case that.the property of the succession was valued on the inventory at $4,578.93, and, as the appellate jurisdiction is governed by the amount tó be distributed, we can discover no reason at present why that jurisdiction is not vested in this court.
We therefore conclude that the grounds upon which the motion to dismiss is based are not well taken, and the motion is overruled.
Opinion on the Merits
On the Merits — Statement of the Case.
Sale oí café.................................... $ 500 00
Sale of furniture and grocery................ 710 00
Cash interest on deposit............. 116 00
Total .................................... $1,326 00
As against which were recognized:
Privileged claims, aggregating..............$ G75 98
And ordinary claims aggregating............ 878 92
Total ....................................$1,554 90
The claim of Cottam & Co., Limited, not having been recognized, it opposed the account, upon the ground, among others, that all of the assets had not been accounted for. On the trial of the opposition it was shown and admitted that all of the goods for the price of which opponent is claiming were sold to Miss Boya, but charged, by her direction, to “Est. Robert Huxen.”
Opinion.
Opponent’s salesman explains the situation as follows:
“Q. If, then, that is the case [i. e., that nothing was due opponent outside of the bill sued on), Robert Huxen owes you nothing? A. This is the idea: Now, he may have owed us about $3, say, at the'time of his. death, and Mrs. Huxen would pay about .$40 and would buy about $40 of goods. You see, she always paid every two weeks, and would buy some goods; so the money that she paid wouldn’t reduce that entirely; but it is evident that the account was paid up before the time of his death.”
Other statements make it perfectly clear that all of the items of the bill sued on were sold after the death of Robert Huxen, and that prior to the filing of the opposition opponent- had been paid all that Robert Huxen owed it. In the cross-examination of Miss Boya and Mrs. Huxen, counsel for opponent appears to have been endeavoring to show that the movables were adjudicated to Miss Boya at the instance and for the benefit of Mrs. Huxen; and it is possible that they may have so convinced the trial judge, though we express no opinion upon that subject, the indisputable and admitted, fact being that, whether the purchase was made for the one or the other, it was not made under conditions which rendered the estate of Robert Huxen, to which the goods were improperly charged, liable for the price.
It is true that there are, cases in which estates under administration have been held liable for expenses incurred by administrators in carrying on, without express authority from the courts, the business in which their decedents had been engaged; and we are referred to Succession of Wederstrandt, 19 La. Ann. 494, Succession of Brown, 27 La. Ann. 328, Succession of Dorville, 30 La. Ann. 133, and Beatty v. Hawkins, 45 La. Ann. 512, 12 South. 887, as instances of that character. But we do not find that these cases establish precedents for holding the succession of Huxen liable in this case. So far as they are applicable, they are merely exceptions which prove the rule referred to in Bank v. Dejean, 12 Rob. 19, as then well established, and which has frequently been recognized and applied since then, that “an administrator cannot create any liability on the estate, by his contracts.” Livingston v. Gaussen, 21 La. Ann. 286, 99 Am. Dec. 731; Succession of Decuir, 22 La. Ann. 372; Miltenberger v. Taylor, Ex’r, 23 La. Ann. 188; Florsheim Bros. v. Holt, Ex’r, 32 La. Ann. 133; Succession of Sparrow, 39 La. Ann. 702, 2 South. 501; Maxwell-Yerger Co. v. Rogan, 125 La. 1, 51 South. 48.
It is therefore ordered that the judgment appealed from, awarding the Opponent H. T. Cottam & Co., Limited*- judgment against this succession, be annulled and the demand of the opponent rejected at its cost.