No. 11,533 | La. | Jul 1, 1895
Lead Opinion
On the Motion to Dismiss.
The opinion of the court was delivered by
In this succession at a sale made under an order of the Civil District Court, Mrs. L. Huy became the adjudicatee of three pieces of real estate, each piece being adjudicated to her separately. On her refusal to comply with the adjudications, the executor took three separate rules against her, one relating to each piece of property, to show cause why she should not be compelled to comply with the adjudications.
By order of court the three rules were consolidated, and being taken up together as one single ease, were tried, evidence adduced and one single judgment rendered in favor of the succession, making the rules absolute. Prom this judgment Mrs. Huy appealed, and a motion to dismiss the appeal has been filed in this court on the ground “ that it has no jurisdiction, as the adjudication of each piece of property was for a price less than two thousand dollars and therefore below the lower limit'of the jurisdiction of this court.”
The aggregate amount of the price of the three adjudications is above that limit. We are of opinion that we have jurisdiction in this case.
In Offut vs. Roberts, 12 Martin, 300, the court said: “We take the effect of the consolidation to be that the cases are to be considered as if the facts of both petitions were introduced in one or several counts, and those of the two answers were put together. On suits thus consolidated, but one judgment can be regularly given.” And in Heirs of Bailio vs. Prudhomme et al., 8 N. S. 388, wherein
The trial of different cases together must not be confounded with the cumulation or consolidation of cases (see Armitage vs. Barrow, 10 An. 79). The mere trial of cases at the same time leaves them as distinct as they were before, but consolidation works the result-which amendments when allowed bring about.
“Amendments, when allowed, form part of the pleadings, and; plaintiffs demand is precisely what it would have been had the original and amended petition been filed at the same time, so that the court must decide on both, and can not give judgment on one alone.”' Hennen’s Digest, 1182, No. 2; Lanusse vs. Massicot, 3 Martin, 41; King vs. Wartelle, 14 An. 750.
The three rules which the executor caused to be taken could all' have been properly combined or. cumulated in one original, and we see no good reason why this was not done, as the law does not favor-a multiplicity of suits and an unnecessary, entailment of costs. The judge rightly consolidated them. Appellee says in her brief that this was done over her objection, but if objection was made the fact does not appear of record. Her position is one of acquiescence if not actual consent. This case is not that of several distinct plaintiffs •with distinct causes of action uniting in one suit against a single defendant, or one plaintiff proceeding against several defendants on a separate cause of action against each. Therefore decisions which go to show that appeals have been dismissed in this court in cases of that character for want of jurisdiction are not pertinent. The only authority cited by appellee which bears any resemblance at all to the present is that of the claim of Hopkins referred to in Louisiana Railroad Co. vs. Hopkins, Kennedy et al., 33 An. 808, which seems to have been decided upon a special state of facts, not identical with those which appear in this.
We think the motion to dismiss the appeal is not well taken. The appeal must be sustained.
Opinion on the Merits
On the first hearing of the cause it was ordered that the judgment appealed from should be avoided and the demand of the plaintiffs be rejected. A rehearing having been granted the opinion of the court was delivered by
The first husband of Mrs. Wilhemina Justus, the late Joseph Armbruster, bequeathed to her all his property. The will was nuncupative by public act, but defective in form because of the failure to state the residence of the witnesses. The will was probated in 1876, and she was decreed entitled to the possession of the property. At her death the property was sold by public auction as hers.
The will has become effective and legal by the operation of prescription, except if there should be minor heirs, against whom the prescriptible period dates from majority. Oivil Code, 3642.
If there are no minor heirs, the property belongs to the succession of Mrs. Justus. In our original decree we reversed the decision of the lower court for the reason that the evidence disclosed that one of the brothers of Joseph Ambruster, viz.: Anton Armbruster, died on October 20, 1882, and there was no proof in the record to show that he left no minor heirs.
The executor of the estate of Mrs. Justus applied for a rehearing' on the ground that Anton Armbruster lived more than five years after the date of the judgment of 24th of November, 1876, probating his brother’s will. This contention is sustained by the record.
A rehearing was therefore granted. The appellant, who was adjudi-catee of property of the succession of Justus, urges that the certificate of the curate at Wolfach, Germany, admitted as proof of the non-existence of Armbruster heirs, is not sufficient to show the matters and things therein stated.
The defendant, purchaser, submits that the case should be remanded in order that evidence may be admitted to prove that the entries in the curate’s books are true. Ordinarily, the entries in registers, duly made, kept by a person bound to record the fact, in any foreign country, makes full prbof when properly authenticated by the consular officer of that country.
The proper evidence in that case is a copy of the record. The certificate should be of birth, marriage and death. Hughey et al. vs. Barrow, 4 An. 248, 252.
There is ho desire on our part to recall our decision in this case on this point. The certificate is properly before the court, and though in some respects it does not make proof of the fact staled it was admitted as competent evidence.
■ The purchaser apprehends that question will arise in regard to the validity of the title if there are minors, or major heirs, as to whom the prescription of five years would not apply.
In order that he may purchase the property, free from all clouds and doubts, he desires that the case be remanded to allow the explanation by testimony of the family tree and the curate’s certificate.
We can conceive of no good reason to deny to him the opportunity of thus sustaining the evidence, if the facts justify, in order that his title may be absolutely legal and valid.
It is therefore ordered that the judgment of the District Court herein be reversed, and that the case be remanded to the lower court ■¡exclusively to hear evidence to be produced by defendant and appellant, within reasonable time, regarding the correctness vel non of the family tree and of the curate’s certificate, and such other evidence'as may be needful to prove that there are or that there are not minors or major heirs to whom the prescription of five years may or may not apply, and that such judgment be rendered on that question as the law and facts will justify (and if there are no minor or major heirs to whom prescription does not apply, that judgment be rendered for plaintiff). Costs in both courts to abide the final ■determination of the cause.