3 La. Ann. 619 | La. | 1848
The judgment of the court was pronounced by
This is a suit by the plaintiffs, who are creditors of the succession of Robert Fristoe, against the defendants, Charles Jones and John W. Stone, who signed the bond given by the widow of Fristoe, who was appointed administratrix of the succession, as sureties for the faithful administration. The trial of the case was' had before a jury, who, under a charge from the court, rendered a verdict for the defendants, and the plaintiffs have appealed.
The defence to the action is disclosed in a bill of exceptions, taken by the counsel for the plaintiffs to the admission of the evidence offered on the part of the defendants, which was received and permitted to go to the jury. The bill of exceptions is as follows:
“ Be it remembered that upon the trial of the above entitled cause, the defendants offered James O. Taliaferro, formerly parish judge of said parish, as a witness, and asked him the following questions, viz : 1 Did, or not, Jones, immediately upon signing the bond on the table of Phelps, turn to you and inform you that he had done so, but upon the express condition that it was to be signed bj Phelps, Boivie, Desha and others, as co-sureties, which was objected to by counsel for plaintiffs on the, ground, that he being the officer who authenticated the bond, administered the oath to the administratrix, and granted letters of administration thereon, all on the same paper, was not admissible as a witness to invalidate it, to add to, or diminish it, or vary its purport or effect; and also on the ground that oral evidence was inadmissible to contradict a public record, or to explain, add to, diminish, or contradict said bond ; all of which objections were over-ruled and the evidence received by the court. The de fendants also offered Truman Phelps as a witness to prove the same facts asked of Taliaferro, which was objected to by the counsel for plaintiffs, on the ground that oral evidence was inadmissible to add to, explain, diminish, or contradict the bond; all of which was over-ruled by the court, and the evidence received by the court. To all of which opinions of the court, the plaintiffs by their counsel except, and pray this bill be signed by the court, which is accordingly-done. ” Phelps was the attorney for the administratrix.
The defence for Jones, is, in substance, that he became one of the parties to the bond, on the express condition that other persons were to become co-sureties with "him. Stone, the other defendant adopts the same defence for himself.
The bond appears to be written on a half sheet of ruled paper, larger than the usual size. It is signed by Sarah E. Fristoe, J. W. Stone and Charles Jones. The names of the sureties are not inserted in the body of the bond. A blank line appears to have been left following the name of the administratrix, which is inserted in its place. There are four scrolls marked thus, [Seal]. It appears to have been taken and acknowledged before the judge on the 27 of May, 1839, the day of its date. Tho oath of the administratrix follows immediately after the bond, and with it the jurat of the judge, and then follows the fiat of the judge in these words:
“State of Louisiana, parish of Catahoula, ss: Be it known that I, the undersigned, judge, in and for the parish of Catahoula, State aforesaid, do by these presents constitute and appoint Mrs. SarahE. Fristoe, administratrix of the estate and succession of Robert Fristoe, deceased, and authorize and empower her to discharge and perform all the duties incumbent on her in that capacity according to law. Riven under my hand and seal of office, this 27th day of May, A. D. 1839. James G. Taliaferro, Parish Judge,”
If we consider those proceedings as judicial — the taking of the bond, the administration of the oath, and the decree of the judge appointing her, on her application administratrix, and recognizing her as having given the bond, and determining that the judge had received and approved it, and therefore had authorized and empowered her to perform all acts as administratrix, these three acts performed by the judge, by virtue of his office, seem to answer the question submitted for our decision in the bill of exceptions.
The judge who takes the bond for the faithful administration of a succession, is called upon to act judicially. He, by receiving and approving the bond, determines on the sufficiency of the amount, and the qualifications of residence and solvency of the sureties. On his fiat the obligation entered inte becomes what is denominated in our law, a judicial suretyship. C. C. 3033. The authority for the administratrix to act as such, based upon the preceding fulfillment of the requisites of the law, is a judicial act in every sense of the term. The counsel who argued the case for the defendants, have relied upon the cases of Wells v. Dill, 1 Mart. N. S. 593, and The United States v. Paulding, et al. 4 Cranch, 219, &c.
We do not find that any of those cases relate to a bond of this description, which has been taken officially by a judge at a judicial suretyship. Such may have been the instrument in the first case, that of Wells v. Dill; but the point raised in this case was not even made, and the report of the case is too meagre to authorize the inference drawn by counsel, in favor of the opinion of the district judge in admitting the testimony offered.
Considering the principle elementary, that no parol evidence can be received to impeach or contradict a record of judicial proceedings, it is out of ple.ce to cite authority in support of it. Where would be the use of records if they were subject to be changed by the testimony of witnesses, or dependent on the treacherous memory of man. Deplorable would be the condition of that people, among whom the rights and property of citizens, as confirmed by the decisions of their tribunals, could be overturned by the very individual, who, in his public office and under the sanction of his oath, had pronounced judgment in their favor. De fide et officio judiéis non recipitur qusestio, sed de scientia, sive sit error juris sive facti. Bacon, Maxims, rule 17.
We think the bill of exceptions well taken, and that a grave error was com. mitted by tbe judge in allowing the testimony of the witnesses to go to the jury.
It is, therefore, decreed that, the judgment of the District Court be annuli-ed and reversed, and it is ordered that the plaintiffs, Taylor, Gardiner Co., recover from the defendants, in solido, the sum of $427 55, with interest from the 2d August, 1845, until paid; and that Catharine Howard, widow in community, and tutrix of the minor Carlisle Scotland Huie, recover from said defendants, in solido, the sum of $530 20, with interest from the same date; the defendants paying the costs in both courts.