Succession of Romero

28 La. Ann. 607 | La. | 1876

Ludeling, C. J.

Severin Bomero filed an opposition to the account and tableau of the administrator of the succession of Antoine Bomero. His opposition was dismissed, and the tableau was- homologated. He has appealed from this judgment, and he contends that tho judgment dismissing his opposition is only a judgment of nonsuit. We do not perceive what we have to do with that question in this appeal. If he has failed to maintain by proof his objections to the tableau, the judgment homologating the tableau was correct. It appears from the record, however, that he is an heir of the deceased whoso estate is being administered, and therefore interested in defeating any debts placed on the tableau not due, or prescribed. In his opposition he pleaded prescription against certain claims placed on the tableau which on their face appear to be prescribed. The- administrator and the court seem to have regarded the opposition, as a separate suit in which the opponent was a plaintiff, and dismissed his opposition for not prosecuting it. This was .an error. The opposition was on file in the nature of an answer, and if -the record showed that any of the objections were valid, the court should have considered them. We believe that, under the circumstances, the ends of justice will be subserved by remanding the cause to be tried de novo. We decided nothing in this case when it was before us in 1873, except that the case'would have to be continued to make proper parties. 25 An. 534.

. It is therefore ordered that the judgment of the lower court be reversed, and that this case be remanded to the court a qua to be proceeded in according to law. The costs of the appeal to be paid by the isuecession.

Rehearing refused.