Tutorship of Minor Heirs of Byland, No. 185

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No. 185 | La. | Oct 15, 1886

Lead Opinion

*758The opinion of the Court was delivered by

Todd, J.

This appeal was from-a judgment sustaining an opposition to a tutor’s account.

There is a claim to dismiss the appeal suggested in the appellees.

First, on the ground that the opposition is made by creditors whose claim amounts to only $96.18 principal; and secondly, that the appeal is taken by the accountant Toombs as tutor, whereas the judgment against him, beyond the recognition of the debt of opponents, is against him personally, .and he has not appealed personally.

The first ground for dismissal is not good.

The amount of funds or property in the hands of the tutor belonging to the tutorship exceeds $2,000, and this fact determines our jurisdiction, and not the amount of the opponents’ or creditors’ claim.

II.'

The controversy so far as relates to the demand to have the claim of the opponents recognized as a just claim, and placed upon the account as such, is one exclusively between the creditors and Toombs as tutor, and the judgment of the lower court to this extent is appealable, but in so far as the opposition and the judgment maintaining it adds to the liability and debt of the tutor to the heirs he represents, to that extent it is in favor of the heirs and against the accountant personally, and from which he should have appealed in his personal capacity.

The appeal, except as relates to the claim and its recognition, must therefore be dismissed, and to that extent the appeal is dismissed, and in other respects maintained.

Opinion on the Merits

On the Merits.

There was an exception to the opposition on three grounds:

1. That there was no cause of action.

2. lies acbjudicata.

3. Prescription.

Under the plea of no cause of action, it is urged that the claim of the opponents purports to be based on a judgment rendered before a justice of the peace, but the amount and number of judgment are not given.

The title of the suit is given, the name of the justice, the ward and parish are stated. Besides, in the rule taken against the tutor to compel the rendition of the account, there is a complete description of the judgment as to amount due, and in short in every particular the opposition and rule for accounts are but parts of the same proceedings. The omission of tile amount was not, therefore, a fatal defect.

*759It was contended, however, that the judgment in question was rendered without citation. There appears to have been a citation issued, but no return on the same. It is, however, shown from the record or minutes of the proceeding that an attorney appeared for the defendants and filed a plea to the jurisdiction, which was overiuled. The appearance of the attorney supplied or cured the want of citation. 21 Ann. 27; 23 Ann, 803; 31 Ann. 540; 35 Ann. 130.

Again it is urged that the magistrate court was without jurisdiction to render the jurisdiction.

As stated above, the plea to the jurisdiction was filed in the very suit in which the judgment was rendered and in the court before which the case was pending, and the court held that it had jurisdiction and overruled the plea, and no appeal was taken therefrom. The ruling on this point was therefore final and conclusive.

2d. We find nothing in the record upon which; to found the plea of res adgndicata, and there is no force in it.

3d. The judgment was not prescribed, since ten years had not elapsed since its rendition. The plea of prescription was properly overruled.

For the reason given it is therefore ordered, adjudged and decreed, that the appeal from the judgment of the lower court, so far as said judgment adjudicates a personal liability from. A. S. Toombs to the heirs represented by him be dismissed, and in all other respects the judgment be affirmed at the cost of the appellant.