38 La. Ann. 260 | La. | 1886
Tlie opinion of the Court was delivered by
This appeal is taken by petition of a ci editor of the succession from the judgment homologating the distribution of its assets, the creditor not having been a party to the proceedings in the-lower court.
Treadwell died in March, 1885, and his widow qualified as administratrix on tlie 15th of tlie next month. A statement or tableau of debts was made and filed the following day along with a petition for the sale of the property, it appearing that the debts exceeded the appraised value of the property. Tlie sale was made. The plantation, which was appraised at $10,000, brought $12,000. The rest of the property, appraised at a fraction under two thousand dollars, brought the full appraisement. A tableau of distribution was filed, advertised and homologated, no opposition having been made thereto, and the funds were distributed.
In December following, S.W. Rawlins, alleging that lie is a creditor of the deceased, petitioned for a devolutive appeal, which was granted. The administratrix has alone been cited, and slie moves to dismiss on the ground that tlie creditors wlio have been paid have not been made parties to the appeal.
The motion must prevail.
The rule is and has long beeu settled, that all parties to the record who are interested in maintaining the judgment must be made parties to the appeal from it, and this rule has been often applied to appeals such as this, it having been uniformly held that in an appeal from a
The appellant cannot invoke the rule that when the fault is not his ho cannot suffer for another’s neglect or omission, for here the, fault is liis. He did not ask Unit citation should issue.' His petition for appeal ■concludes with this prayer: “Wherefore, premises considered, petitioner prays for an order of devolutive appeal, returnable to the Supreme Court on the second Monday of February, 1886, according to law. He prays for all orders necessary and general relief.”
There is no prayer for citation of anyone, nor was any ordered, the judge having simply granted the, appeal and prescribed the amount of the bond. The prayer for all necessary orders does not include it.
This omission is not cured by the Act of 1839, now Sec. 36 Rev. Stats., a series of decisions having settled that this statute is not applicable to so vital a prayer as that for citation when the appeal is by petition, and that when that prayer is not made the lack of it is attributable to the appellant. Fagan vs. Moriarty, Manning’s Unrep. Gas. 439; Adams vs. Dermody, 21 Ann. 238; Guilbeau vs. Cormier, Idem, 629; Gerodias vs. Handy, 31 Ann. 334.
The appellant complains that “a summary process of administration was adopted.” Creditors of successions have rarely had occasion to ■ complain of the speedy settlement of them. The evil lies in the opposite direction, but in this ease the final account was filed May 29th. •Only ten days advertisement of it was required, but it was not homologated until July J8th, nearly two months interval.
The appeal is dismissed.
