text:
    RACHAL ET AL. vs. RACHAL'S HEIRS ET AL.
    Western Hist,
    October, 1836.
    APPEAL PROM THE COURT OP PROBATES POR THE PARISH OP NATCHITOCHES.
    The tutrix cannot maintain an action of partition for the share of her pupil, without the advice of a family meeting, together with the special authorization of the judge.
    Co-heirs have an undivided interest in the property of the ancestor, which indivisión, the action of partition destroys, vests in each his share, and extinguishes his right to the rest.

      But whore the property of an estate is converted into cash, there is no necessity for a partition, it is a matter of division; and each heir can demand the payment of his share. '
    The wife is deprived of her tutorship ipso facto, if she marries again without having provoked a family meeting. This is an affirmative pregnant with the negative, that her marriage after provoking a family meeting, does not deprive her of the tutorship, even if the proceedings are not homologated.
    This is an action instituted by the natural tutrix of a minor child, to recover its portion of its grandfather’s succession, which is in the hands of the administrator.
    The plaintiff alleges, that her minor daughter is entitled, by representation of her deceased husband, to one seventh part of the succession of her husband’s father, now in the hands of the administrator, in money. That as natural tutrix of her said minor, she has a right to call on the administrator for its share, and to claim the portion coming to her ward, contradictorily with the other heirs. She prays that they be cited, together with the administrator, and that the latter be required to render an account, that a partition be made, and that she have judgment for the amount due to her said ward. • '
    The defendants pleaded a general denial, and denied specially the plaintiff’s quality as natural tutrix, because, as they aver, she was not on her second marriage maintained in the tutorship of her minor daughter. They further averred, that the plaintiff’s quality as tutrix is now at issue in a suit between the under tutor and her; that the under tutor is the only person who, by law, may bring a suit for the removal of the tutrix, and in contemplation of law must be considered the defendant’s representative in that suit, and that the plaintiff cannot institute this suit.
    The administrator of the estate of Radial, pére, filed a tableau of division, which showed the sum of fifteen thousand two hundred and sixty-eight dollars in his hands, and the share of each heir to be two thousand one hundred and eighty-one dollars.

      The plaintiff offered in evidence the procbs verbal of a family meeting, maintaining her in the tutorship of her children on her second marriage. These proceedings had not been homologated. After the commencement of this suit in a petition to the judge, an order homologating them was entered.
    Upon these pleadings and evidence, the cause was submitted to the judge of probates, who gave judgment for the defendants.
    The plaintiff moved for, and obtained a new trial.
    The défendants then had leave to file a peremptory exception, alleging that the plaintiff was not authorized to bring this action by the advice and consent of a family meeting, and the approbation of the judge, as required by law. The counsel for the plaintiff objected to filing this exception, on the ground that it came too late, and if pleaded at all, should have been pleaded in limine litis. The court was of opinion that it was a peremptory exception founded in law, and should be allowed. The opinion of the court was excepted to.
    The judge of probates gave judgment of non-suit on this exception, from which the plaintiff appealed.
    Gayoso, for the plaintiff.
    1. The tutrix is the proper person to institute this suit, and to obtain for her ward the share coming from the succession of Rachal, deceased.

      2. It has been objected that the plaintiff in her second marriage, lost her right to the tutorship of her minor daughter; on the contrary, she was confirmed in her office by the advice of a family meeting.

      3. The judgment of non-suit first rendered having been set aside, the cause should have been tried on its merits. The exception put in, denying the tutrix’s right to sue, because not authorized by the judge upon the advice of .a family meeting, came too late. The defendant is bound to plead in his answer, all the dilatory or peremptory exceptions on which he intends to rely. This he has not done. Practice, articles 330-336. Code of

      Dunbar, for defendant.
    1. This case stands on a peremptory exception put in by the defendants, denying the plaintiff’s right as tutrix to sue for a partition, without the express authorization of the judge, with the advice of a family meeting; this she has not obtained, and without it cannot maintain her action. Louisiana Code, 1235.
    2. This is a peremptory exception going to extinguish the action, and can be pleaded at any stage of the proceedings. 4 Martin, JV. S., 434.
    3. The party may amend his answer and add to it new exceptions, provided they are not dilatory ones. Code of Practice, article 420. 7 Louisiana Reports, 94.

      Winn, for the plaintiff in reply.
    1. The defendant having joined issue on the merits, cannot afterwards except to the plaintiff’s capacity to sue. This is waived. The plea of the defendant is nothing more than the general issue. The exception denying her authority to maintain an action of partition, should have been specially pleaded in limine litis. 2 Martin, JY. 3., 389.'
    2. This is not a peremptory exception, but a dilatory or declinatory one, relating to the forms of proceeding, and came too late. Code of Practice, article 330, et seq. 7 Louisiana Reports, 265.
    3. This is a suit requiring the administrator to account and pay over the share coming to the minor, represented by the plaintiff; she has an undoubted right to maintain her action on this trance of the subject.
   Martin, J.

delivered the opinion of the court.

This is an action by the plaintiff, as natural tutrix of her minor daughter, against the co-heirs and the administrator of the ancestor’s estate. The estate is alleged to have been administered, reduced into cash, and forms a gross sum in the hands of the administrator. He is called upon to produce his accounts, and judgment is sought for the share of the minor in the balance.

The tutrix cannot maintain an action of partition for the share of her pupil ■without the advice of a family meeting*, together with the special authorization of the judge.^

Co-heirs have an undivided m-terest in the property of the an-indivisión whthe action of partition destroys, vests in each his tinguishesd his right to the rest,

property16^ edatinto°0ncash there is no ne-títion^ f°itaisaia idon^and each heir’can demand iiis share?6”1 °f

The defendants denied that the wife had been legally maintained in her tutorship on her second marriage. This plea was sustained, and judgment rendered in favor of the defendants. The plaintiff obtained a new trial.

The defendants then, with leave of the court, filed a plea alleging, that the plaintiff could not maintain an action of partition, without its having been recommended by the advice of a family meeting, and the special authorization of the judge.

This plea was sustained, and judgment rendered in favor of the defendants, as in case of a non-suit; from which the plaintiff appealed.

We will proceed to examine the last plea first, which relates to the right of the plaintiff to maintain the action of partition.

It is true the petition concludes with a prayer for the partition of the estate of the common ancestor, and if the succession consisted of any other things than money, the , ,,, it»** . ^ . plea would be good. Jout it is averred that it consists of a sura moneY iQ the hands of the administrator. Co-heirs have an undivided interest m each and every part of the , , . ... property of the ancestor, lhe object of a partition is to destroy that indivisión, by vesting in each the exclusive property of that part of the estate which falls to his share, aQd of extinguishing his right to the rest. If a sum . of money’ the j“nt ProPerty of two persons, be in the hands of a third, there is no necessity for a partition ; each may de-mand the payment of half of it. A sum of money is an ideal or *nc°rp°real thing, which is not susceptible of actual partition, but it is of division. The court therefore erred in sustaining the plea and giving judgment, as in case of non-suit.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed, and this plea overruled.

The wife is deprived of her tutorship, ipso facto, if she marries again without having provoked a family meeting. This is an affirmative pregnant with the negative, that her marriage, after provoking a family meeting, does not deprive her of the tutorship, even if the proceedings are not homologated.

Proceeding to give such a judgment, as in our opinion ought to have been given in the court below, our attention is called to the first plea of the defendants. It appears that the plaintiff, before her second marriage, provoked a family meeting, and was maintained by it in the tutorship of her minor daughter, but this court has been unable to find the evidence of the homologation of the proceedings of this family meeting on the record.

The Louisiana Code provides that the tutrix shall be deprived of her tutorship ipso facto, if she marries without having provoked a family meeting to retain her in the tutorship. This is an affirmative pregnant with a negative, that her marriage, after she has provoked a family meeting, does not deprive her of the tutorship. If the family meeting maintains her in the tutorship, and the judge homologates the proceedings, it is clear that her right to the tutorship will not be impaired by the marriage. If the meeting declines to retain her in office, it is equally clear that this circumstance will authorize her destitution. But perhaps this destitution must be pronounced contradictorily, because the law has not said that it shall take place ipso facto, as in case of her neglect to call a family meeting.

It is, therefore, ordered, adjudged and decreed, that the first plea of the defendants be overruled, and the case be remanded for further proceedings according to law; the costs of the appeal to be paid by the defendants.


source: Caselaw Access Project

author: Martin, J.,

license: Public Domain

text:
    RACHAL vs. RACHAL ET AL.
    WESTERN Ü1ST»
    October, 1836.
    APPEAL FROM THE COURT OP PROBATES FOR THE PARISH OP NATCHITOCHES.
    Where the tutrix has caused an inventory to be made of her deceased husband’s estate, it is unnecessary to renew the inventory on the death •of a child, as the evidence of the extent of his property is already of record.
    The wife will be maintained in her tutorship when she has been retained in it by advice of a family meeting, on a second marriage.
    Where the insolvency of the husband, who is co-tutor with his wife, is made the ground of suspension of the functions of the latter as natural tutrix, it must be sought for in a direct action. ;
    This is an action by the under tutor to remove the tutrix of her minor daughter for malversation in office.
    The plaintiff alleges that he is under tutor of the minor daughter of (he defendant, and that the mother, as natural tutrix, has received large sums of money as the inheritance of her ward from her deceased husband’s succession, and a deceased child ; and from a grandfather’s estate; and, as he believes, is wasting the funds. That she has intermarried with her present husband, who is idle and worthless, and against whom she has obtained a judgment of separation of property ; and that he believes she is about to sell all her -effects, and leave the state, and thereby defraud her said minor daughter. He prays that she be called to render an account, and be removed from office.
    In an amended petition he further alleges, the tutrix failed to cause an inventory to be taken of her deceased child, and brother of her ward; and that she has not complied with all the requisites of the Law, in order to be continued as tutrix on marrying her second husband.
    The defendant pleaded a general denial; and further averred, that she had been maintained in her tutorship, on her second marriage, by the advice of a family meeting. , The husband answered, and denied the allegations against his said wife and tutrix, and averred she had faithfully discharged her duty as such. '
    Before going to trial, the tutrix filed in court an account of her administration of her ward’s effects.
    The evidence showed that since the marriage, the wife and tutrix had obtained a judgment of separation, and for the separate administration of her property. It also appeared that the husband was still in possession of slaves and other property, and that he made crops of cotton, &c. That the minor daughter of the tutrix was well clothed and supported, and was getting her education. No testimony was introduced showing any intention or. acts, by which the tutrix was about to abscond, or in any other way defraud her minor of its rights or property.
    The judge of probates gave judgment for the defendants. The plaintiff appealed.

      Dunbar, for the plaintiff.
    This is an action to remove the defendant as natural tutrix, on the ground that she married a second time without being confirmed in 'her office ; and because of the insolvency of her husband, who became co-tutor. The wife has obtained a separation of property, which suspends the tutorship. The husband’s insolvency is good grounds of removal. Louisiana Code, 323. Sirey, annoté ■Code Napoleon, article 393.

      Gayoso, for defendant.
    The defendant has been confirmed in ber tutorship. The survivor is entitled to the tutorship of right. On marrying, it is true the husband becomes of necessity co-tutor. Louisiana Code, 268, 278.
   Martin, J.,

delivered the opinion of the court.

The, plaintiff is appellant from a judgment which rejects his application, as under tutor, for the removal of the defendant as natural tutrix of Emilie Bachai, her minor daughter. The grounds of this application are, her incapacity, waste of the property of her ward, and that she is about to sell off her property and remove from the state, with a view of de-hauding her minor daughter; and further that she failed to make an inventory of the estate of one of her deceased minor children, of whom her ward is heir; and that she has not been legally continued as tutrix of her said minor, on her second marriage. As the property of her deceased child was ah'eady i*1 her hands, as his natural tutrix; and as it is not alleged that she neglected to make an inventory on the .death of his father, (her first husband) when she assumed the tutorship of her minor children, it does not appear to us that it was necessary to renew the inventory on the death of , „ , ... the child, as the evidence of the extent of his property was already a matter of record. In the case of Rachal et al. vs. Rachal’s heirs, just decided ante 454, in which it was objected then, as it is now, that she had not been maintained in the tutorship of her minor children, we determined, on evidence 1 . . exactly similar to that m the present case, that she had been legally maintained in office.

Where the tu-an inventory to deceased ^husband’s estate, it reneiTThe^m-death of a ehUd6 as the evidence of the extent of his property is cord!dy °f re"

The wife will hermaitutorship" when she has been confirmed in it by the ad-meeting! ^n^a second marriage.

Where the in-husband whohs co-tutor with his vil© is xniidc the ’ ground of thePfunctkms of the latter as na-must be sought actio™ a <lirect

The remaining grounds of the application rests on questions of fact, on which the testimony is somewhat contradictory. The Court of Probates has concluded that ^ preponderates in favor of the defendant, and it does not appear to us that the court erred. If the alleged insolvency * ^ o «/ of the husband and co-tutor, authorized a suspension of the tutorship of the wife during the marriage, it must be sought for jn a direct action for that purpose; as the insolvency is not proved to have existed at the time of the judgment of separation ; and it is in evidence that he has several slaves and other property.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.


author: Marlin, J.,

text:
    GIBSON vs. M'CRUMMEN.
    Westeiin 1)ist
    October, 1836.
    APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    Where the certificate of the clerk does not state that the record contains all the evidence on which the cause was tried, and there is no other means given to examine the case on its merits, the appeal will be dismissed.
    Where the certificate of the1 clerk does not state that the record contains air the evidence on which the cause was tried, and their is no other means given to examine thecase-on its merits, the appeal will be dismissed.
    This is an action against the endorser on a promissory note. There was no defence and no evidence in the record, except the note sued on, and the protest and certificate of the notary, that notice was given to the defendants.
    There was judgment by default made final against the defendant, and he appealed.
    The judgment states, that by reason of the judgment by default not being set aside, and the law and evidence being in favor of the plaintiff judgment was rendered.
    The clerk’s certificate to the record simply states, that it is “ a true, full, and perfect transcript of the record, documents, and proceedings in the case existing in his office.”

      Dunbar, for the plaintiff,
    submitted the case on a prayer for the affirmance of judgment, with ten per cent, damages, as for a frivolous appeal.

      Winn and Barry, contra.

   Marlin, J.,

delivered the opinion of the court.

In this case the certificate of the clerk does not state that the record contains all the evidence on which the cause was tried. The appellant has not enabled us, by a statement of facts, bill of exceptions, assignment of error, or any other manner legally to review the judgment of the District Court.

It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed, with costs.


author: Mathews J,

text:
    SPRIGG ET AL. vs. BYNUM ET AL.
    WESTERN DlST.

      October, 1836.
    APPEAL PROM THE COURT OP THE SIXTH JUDICIAL DISTRICT, THE JUDGE OP THE SEVENTH PRESIDING.
    In a possessory action, where the petition does not allege a possession of a year, which alone would give a right of possession, no recovery can he had.
    Where the plaintiffs, in a possessory action, found their claim to be restored to possession, on the ground of eviction by force, this fact is properly within the cognizance of the jury.
    This is a possessory action. The plaintiffs allege, that in 1835, they were in the quiet and undisturbed possession of a tract of five hundred .and thirty-nine acres of land, lying on the north side of Red River, embracing the greater part of section twenty-seven, in township six, range three, in the Ouachita land district. They further allege, that they have been dispossessed by the authority of W. H. T. and J. A. Bynum, both absent from this State. They pray for five hundred dollars in damages, and to be restored to possession.
    The defendánts pleaded as a peremptory exception, that the plaintiffs have already sued them in a petitory action, and cannot maintain a possessory one for the same premises.
    They also pleaded a general denial, and call E. M. Bynum to warrant the possession and ownership of said land, she being the person from whom the premises were transferred to them, &c.
    The .plaintiffs proved that in January, 1835, they leased the premises to one E. Hubbard, who was in the possession as their tenant, at the time of the disturbance and dispossession.
    A plat of township six, range three, &c. was also in evidence, which showed the locus in quo, as possessed by plaintiffs.
    Mr. Hubbard, witness for plaintiff, testified that he took possession for one of the plaintiffs, and had a surveyor along to show the corners of the sections of land embraced by the plaintiffs’ claim. That after he had been on the land eight or ten days, Mrs. E. M. Bynum sent a man and some negroes, who made an improvement about half a mile from that of the plaintiffs.
    i„apossessory action, where the petition does not allege a pos-whfo^^aíoné „£lve a right oí- posses-síon, no recovery can be had.
    Where the plaintiffs, in a tion, found their stored to possession’ ,0I!. I'113 ground of eviction by force, periy'withinPthé tjjJS?^®noe of
    There were several bills of exception to the introduction of witnesses, and title papers of the defendants.
    The cause was submitted to a jury, on the evidence adduced by the parties.
    The defendants had a verdict and judgment, from which the plaintiffs appealed. ’
    Dunbar,lfor plaintiffs.

      Winn and Bryce, for the defendants.
   Mathews J,

delivered the opinion of the court.

This is a,possessory action, in which the plaintiffs claim to be restored to, and quieted in their possession of a certain 3 1 , r t tract of land, as described in their petition, and from which they allege that they were forcibly driven by the defendants. The cause was tried by a jury, and a verdict found for the J _ J defendants, on which judgment was rendered, and the t * , • .-y» i *> -plaintiffs appealed.

The decision of the case depends principally on matters of fact. The petitioners do not allege a possession of a year, which alone would give them the legal right of possession, on proof of its existence. They found their claim on eviction 1 1 ... by force; this is a fact properly within the cognizance of the jury, who by their verdict have negatived its truth, and from an examination of the testimony, we are of opinion they did not err.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs..


author: Bullard, J.,

text:
    OVERTON ET AL. vs. OVERTON.
    Western Dist.

      October, 1836.
    APTEAE FROM THE COURT OF PROBATES, FOR THE PARISH OF CARROLL.
    The Court of Probates is without-jurisdiction, and incompetent to decide on an agreement between parties claiming a succession, which contains a promise to sell and other conditions of a contract.
    The question, whether one of the parties who claims the estate, and is not an heir, had lost any rights under the agreement by a non-compliance with its conditions, was one of title, involving his right as a purchaser, which the Probate Court is clearly incompetent to decide.
    The Court of Probates may decree provisional possession of the estate to the presumptive heirs of an absentee; but at the same time, if they claim as part of the estate, property in possession of any one, they must assert their right contradictorily with the possessor, in the ordinary tribunal.
    When the court is without jurisdiction as to the principal demand, it is without authority to issue a writ of sequestration, which is but an incident and a cautionary measure.
    The plaintiffs allege that they are the heirs and' legal representatives, to wit, the brothers and sister of Samuel Overton, deceased, late of the parish of Carroll, who died possessed of several slaves and considerable personal property. That' one John Overton Patten, who calls himself John P. Overton, has taken possession of all of said property without any legal authority, and they fear will take advantage of his1 possession to run the property out of the jurisdiction of the court. They desire also to accept the succession of their deceased brother, with the benefit of inventory, and that an administrator be appointed. They therefore pray that they be recognized as heirs ; that an inventory be made of all the property, and an administrator appointed to administer it, and that a writ of sequestration issue, and all the said property be taken out of the possession of the defendant, &c,

      The defendant, at the April term, 1886, of the Probate Court, filed an exception and motion to dismiss this suit, for errors apparent on the face of the record, and that the sequestration be dissolved for errors and defects of record.
    This exception was overruled by the court.
    An exception was then put in, declining to answer, and excepting to the jurisdiction of the Probate Court to try the case, as it involved a question of title.
    This exception was also overruled, and an answer put in to the merits. -
    The defendant pleaded a general denial; and further averred that the property mentioned in the petition is not that of the estate of Samuel Overton, deceased, but belongs to this respondent by purchase, as will be shown by reference to a notarial act, dated some time in December, 1832 ; that he has been in possession a considerable time, and acquired title thereto, &c. For these' considerations the Probate Court is without jurisdiction of this matter, &c. He prays that the suit be dismissed.
    Upon these pleadings and issues the parties went to trial.
    The cause was set for trial on the 30t.h April, 1836.
    The plaintiffs offered in evidence a document executed by them and the defendant, in which the latter acknowledges the plaintiffs are the heirs and legal representatives of Samuel Overton, deceased, and that he has assets of the succession in his hands amounting to the sum of twelve thousand four hundred and seventy dollars; and binds himself in a penalty to pay in cash, within eleven days, said sum to the plaintiffs, after deducting three or four thousand dollars, for which he had become liable on account of the succession. In consideration of this payment, the plaintiffs, as heirs of Samuel Overton, deceased, bind themselves tó transfer all of their right and title to said succession, so far as it has been inventoried, and to dismiss this suit. It was expressly stipulated that this agreement should be complied with in eleven days from the signing. Dated April 7th, 1836.

      The reading of this document was objected to by the defendant, but admitted in evidence, and a bill of exceptions taken to the opinion of the court.
    There was full proof that the plaintiffs were the heirs of Samuel Overton, deceased; that his succession was opened in the parish where the suit was pending; that it was in possession of the defendant, who claimed it as heir also.
    The plaintiffs offered in evidence a petition of the defendant, in which he had represented himself as a nephew to the deceased, and claimed to be appointed curator of his succession.
    The judge of probates rendered judgment, confirming the plaintiffs in their capacity of heirs, that they be put in possession of the deceased Samuel Overton’s succession, and that they have the administration thereof. The defendant appealed.

      Friend, for the plaintiff.

      Selby, for defendant.
   Bullard, J.,

delivered the opinion of the court.

The plaintiffs represent, in their petition, filed on the 19th March, 1836, that they are the heirs of Samuel Overton, deceased, who left property, consisting of slaves and movables. That one John Overton Patton, who calls himself John P. Overton, has taken possession of the whole property without authority. The)r express a desire to accept the succession with the benefit of inventory ; pray that they may be recognized as heirs; that an administrator may be appointed; that the property may be sequestered; that the defendant may have notice of these proceedings; and that he be ordered to surrender into their hands all the papers, books, vouchers and money, which may have come into his hands, belonging to the estate. On this petition, under date of March 18th, 1836, the judge ordered that the petitioners be recognized as heirs ; that they be allowed to accept the succession, under benefit of inventory; that an administrator be appointed ; that the property be in the mean time sequestered, on the petitioners giving bond, and that an inventory be made. i .

On the sixth of April, the defendant filed a motion, praying that the suit be dismissed for errors apparent of record, and that the sequestration be dissolved.

The exceptions, thus brought to the notice of the court somewhat loosely, are specifically set forth in what is called a bill of exceptions, to which our attention has been called. The objections were: 1st. That the citation did not set forth the residence of the defendant, nor the place where the office of the clerk is kept: 2d, That the sequestration ought to be set aside, because a copy of the orders was not served on the defendant, and that the court erred in ordering a copy to be served afterwards: 3d. That .the petition is insufficient, as it does not set forth the residence of the defendant.

After these exceptions were overruled, to wit: on the 27th of April, the defendant filed his answers, in which he denied the allegations in the petition. He further alleges that he is in possession of the property, as an owner by purchase, as evidenced by an act passed before F. De Amas, notary public. He denies the jurisdiction of the Probate Court, to decide upon the question of title, and prays that the suit may be dismissed.

The court sustained its jurisdiction, and after trial adjudged that the plaintiffs were heirs at law; that they should be put in possession, and have the administration.

In the progress of the trial the plaintiffs gave, in evidence, a document bearing date the 7th of April, 1836, after the inception of this suit, by which it appears that the defendant acknowledges the plaintiffs to be the heirs at law of Samuel Overton ; that he had in his hands assets belonging to the estate amounting to twelve thousand four hundred and seventy-two dollars, which he binds himself, under the penalty of ten thousand dollars, to pay over to the plaintiffs, after deducting three thousand and seventy-five dollars, for which he had become responsible, on account of the estate, and such other debts as may be presented and properly established against the same, within eleven days, within which time the agreement is to be fully accomplished. The-plaintiffs bind themselves, under the penalty of four thousand dollars to transfer to the defendant, on his compliance with his part of the agreement, all their right, title and interest to and in the succession of Samuel Overton, so far as it has been inventoried in the parish of Carroll, including a tract of land in the parish of Iberville. They further bind themselves to dismiss this suit. It was agreed that this agreement should be deposited with the parish judge, to be used by either party on the failure of the other to comply, “which shall be manifested by the party wishing, by his appearing at the office of the parish judge, on the 18th of April, and there declaring, in the presence of witnesses, that he or they are ready to do so.”

The Court of Probates is-without jurisdiction and incompetent to decide on an agreement between parties claiming a succession, which contains a promise to sell and other conditions of a contract.

The question, whether one of the parlies who claims the estate and is not an heir, had lost any rights under the agreement byanon-compliance with its conditions,' was one of title, involving his right as a purchaser, which the Probate Court is clearly incompetent to decide.

This was certainly a’ promise to sell, under certain conditions, and an admission that the defendant was in possession, and had made large advances on account of the estate. The question, whether the defendant had lost any right under that agreement bjr a non-compliance with its conditions, was one which the Probate Court was clearly incompetent to try, inasmuch as the defendant does not appear as a co-heir, but as a stranger to the succession, and in possession, with the consent of the plaintiffs, and under a contract, by which he became the owner, on complying with certain conditions within the limited period. The Probate Court could not inquire whether the defendant had been properly put in delay, or whether he may not have been prevented from performing the conditions within the time, by the acts of the plaintiffs themselves. In deciding on those questions, the court would necessarily inquire into the right of the defendant as purchaser, and upon his title to the property.

The probate judge seems to have supposed that he had jurisdiction in this case under that provision of the Code of Practice which gives to Courts of Probate exclusive authority to decide on the putting in provisional possession of the heirs of absentees. Article 924, JVo. 12. But this is not the estate of an absentee. The ancestor died in the parish, and never appears to have been an absentee. He cites, in support of his view of the case, thq decision of this court in the case of Donaldson vs. Dorsey et al., 4 Martin, N. S. 509.

The Court of Probates may decree provisional possession of the estate to the presumptive heirs of an absentee ; but, at the same time, if they claim as part of the estate, property in possession ofany one, they must assert their right contradictorily with the possessor, in the ordinary tribunal.

when the to the principal de-out"authority to °f "'hioh is but ah incident and a cautionary mea-sui’e-

In that case the defendants were in possession of some property claimed by' the presumptive heirs of-an absentee. The defendants pleaded to the jurisdiction of the Probate Court. The exception was sustained in both courts. The Supreme Court held that the Probate Court was correct in decreeing provisional possession of the estate to the presumptive heirs, but at the same time they say, that if they claim as part of the estate, property in possession of any one, they must assert their right contradictorily with the possessor in the ordinary tribunal. (Loco citato.)

The case how before the court presents no other question which the defendant had any interest in contesting. It was unnecessary to cite him, in order to establish the heirship of the plaintiffs, and they were, in fact, recognized as heirs by •the probate judge before the citation issued ; and they had already assumed the quality of heirs, by undertaking to sell the estate. As a claim for the administration, the law does not require that persons interested in (he estate should be made parties to a suit for the purpose of contesting the right of the applicant,- and only requires public notice of the application.

As the court was, in our opinion, without jurisdiction, as to the principal demand, it was without authority to issue the writ of sequestration, which is but an .incident and a , 1 cautionary measure. ,

We have not thought it necessary to inquire as to the correctness of the proceeding, in overruling the first exceptions, because most of them related to such defects as might, have been cured by amendment, and the defendant does not deny that he is the same jDerson mentioned in the citation.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed ; that the exception to the jurisdiction be sustained, arid the suit dismissed; and that the plaintiffs and appellees pay the costs in both courts.


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    OVERTON ET AL. vs. OVERTON’S ADMINISTRATOR.
    Western Dist.

      October, 1836.
    APPEAL PROM THE COURT OF PROBATES, FOR THE PARISH OF CARROLL.
    It is necessary for all the heirs to join in an action, to compel the administrator to account, as he is bound to render but one account of his •administration.
    But any one of the heirs majr maintain an action to remove the administrator for malversation in office.
    The administrator may be removed, and called to account for his administration afterwards. The heirs can then have recourse upon his bond.
    -An injunction cannot be maintained, suspending the administrator in the exercise of the functions of his office, though he might well be restrained for committing waste and ruining the estate, by collusion with pretended .creditors.
    This is an action instituted against the administrator of Samuel Overton, deceased, to restrain and enjoin him from ¡proceeding in the administration of the estate, requiring of him to render an account, and praying that he may be removed for malversation in office.
    The suit was commenced by J. and T. J. Overton, styling themselves brothers of the deceased, who, together with their sister, Cassandria Overton, wife of J. F. Bryan, residing out of the state, are the legal heirs, and have accepted the succession of said Samuel Overton, with the benefit of inventory. v
    They allege that the defendant, is ruining the estate he administers, through fraud and collusion with pretended creditors and others, by admitting enormous and exorbitant claims against it, and other misconduct in office. They pray for an injunction to restrain him from acting any further, and that he be suspended until final hearing is had in the case, and finally, that his letters of administration be revoked, and that they, for themselves and sister, be allowed to accept the -succession of the deceased, Samuel Overton, purely and unconditionally, and put in the possession thereof.

      The probate judge made an order, granting the prayer of the petitioner.
    The defendant pleaded a general denial, and averred that the injunction was illegally issued, and prayed that it be dissolved, with damages. He further averred, that the plaintiffs showed a joint interest in the succession claimed with their sister, who was not a party to the suit, consequently it could not be maintained ; that he had sustained eight hundred dollars damages, for attorneys’ fees, by this pro-ceding, and one hundred dollars for costs and expenses. He therefore prays, that the injunction be dissolved, with damages, and the suit dismissed.
    The judge of probates was first of opinion, from the pleadings and evidence, that the affidavit was insufficient on which the injunction was granted, and gave judgment dissolving it, with damages as prayed for, but allowed the case to proceed as to the other matters. The plaintiffs’ counsel excepted to this judgment.
    On motion and argument, this judgment was set aside, and the injunction reinstated.
    There are a great many bills of exception in the record, which seem to have been taken at every step of the case, and are not material to its decision.
    The evidence showed gross abuse and collusion on the part of the defendant, as administrator, in admitting the account of a certain attorney for a fee, which swallowed up the whole of the estate. It seems the attorney made an arrangement with the deceased, Mr. Overton, while the latter was in prison, on a charge of murdering one of his own slaves, to defend him in court, for which he was to have-all Overton’s property. The latter, however, died in jail before he was ever brought to trial. His attorney' ascertained the nett amount of his estate (nine thousand dollars,) and made his fee to cover it, which was admitted by the-administrator.
    On a final hearing, the probate judge dissolved the injunction, with damages, but admitted the plaintiffs as heirs,, and ordered the defendant to render an account of his administration, and that the plaintiffs be put in possession of the estate. From this judgment the defendant appealed.
    for all theTeTra to join in an action to compel the administra-as"hl° is°bound to render but one administration,
    thef'heSs ° may maintain an ac-the administra-sat'ion1 inoffice1'*
    The adminis-movec™and cafi-ed to account for his administration afterwards, then 'have recourse upon his
    An injunction tained suspending the administrator in the exercise of the office,'thoughhe niight yell for committing ing^the'^estate" by collusion with pretended creditors.

      Spaulding and Friend, for the plaintiff.

      Selby, contra.

   Bullard, J.,

delivered the opinion of the court.

Two of the heirs of Samuel Overton, who stated that their co-heirs reside abroad, sue the administrator of his estate, alleging malyersation, and pray that his letters may be revoked, and that he may be condemned to account.

The defendant excepts that all the heirs are not parties,

,,T ... . . , , . ..... Vve are of opinion, that so far as the object of this suit is to comPel the administrator to render an account, all the heirs ought to have joined in the action, because the defendant is bound to render only one account; but any one of the heirs “‘S^t well provoke the removal of the administrator, on the grounds alleged ip the petition. The administrator, for sufficient causes, might be removed and called to account ^01’ h's administration afterwards, and the heirs have recourse upon the bond.

The evidence in the record satisfies us that the conduct of the defendant was such as to justify his removal, and we J J presume, from the tenor of the suit, the court below supr Posed he must first render an account, and did not make ¿he proper distinction between a discharge of the administrator, which could only be done after a rendition of his account, and his removal which might precede it.

The injunction was properly dissolved, because while the , J . . . r , „ . . . defendant was administrator, his functions could not be altogether suspended, though he might well be restrained from committing waste and ruining the estate, by collusion with pretended creditors ; but the judgment in favor of the defendant for nine hundred dollars damages, is ifi our opinion erroneous, because the record furnishes no standard r . ■ by which the court could estimate the ten or twenty per cent., authorized by statute, in a summary way. Session Acts of 1831, sec. 3, page 93. Acts of 1833.

There is a confused mass of bills of exception in the record, which our view of the merits of the controversy renders it useless to decide upon.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be avoided and reversed ; and proceeding to give such judgment as ought, in our opinion, to have been rendered below, it is farther ordered and decreed,, that the letters of administration heretofore gvanted to the defendant, on the estate of Samuel Overton, be cancelled and revoked, that the injunction be dissolved, the costs of the Court of Probates, except those occasioned by the injunction, be paid by the defendant, and that those last mentioned, together with those of the appeal, be paid by the plaintiffs, reserving to the defendant his right, if any he have, to recover damages on the injunction bond.


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    MOURAIN vs. BEAUVAIS.
    Eastern Dist.

      February, 1837.
    APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE OF THE SECOND PRESIDING.
    Payment made to the attorney on the record is a good payment. .
    The curator ad hoc cannot obtain an.ea: parte .judgment against the person . whose interest in a, suit he was appointed to defend, • for his fee or compensation.
    This is an injunction suit. The plaintiff shows that tbe defendant bad been appointed to defend her interest as curator ad hoc in an action of partition brought against her in her absence, and that he had, in an ex parte manner, obtained a judgment of tbe court, allowing him five hundred dollars for a part of his costs and expenses, which was paid over to tbe attorney who defended the suit. That notwithstanding this, the defendant has caused an execution to issue for the said five hundred dollars, under which the sheriff has seized a slave belonging to her, and is about to sell it. She prays for an injunction, perpetually restraining ancbprohibiting any further proceedings under or by virtue of said judgment, and for one hundred dollars in damages and costs.
    The defendant answered, denying every thing alleged which was not specially admitted. He admitted his employment as curator ad hoc to represent the present plaintiff, who is an absentee, in the suit for partition, as alleged, and that an allowance of five hundred dollars was made him by the court, for his trouble and expenses, but denies that it was ever paid to him, or received by any authorized agent or attorney of his. He further avers, that so far from his having authorized any attorney or agent to receive this money, the order of court allowing it had since been annulled and set aside by the Supreme Court. He prays that the plaintiff’s demand be rejected, the injunction dissolved, and that he have judgment against her for the sum of five hundred dollars in damages, &c.
    The defendant further prays, that Thomas J. Cooley, the attorney, who is alleged to have received this money, be cited and made a party, that this fact may appear, and that judgment may be rendered against him in favor of this respondent, for the sum of five hundred dollars, on its appearing he has received it from the plaintiff.
    Cooley excepted to the call made on him in warranty, on the ground that, by his own showing in his answer, the plaintiff is not entitled to call on him.
    The plaintiff moved to have so much of the answer as relates to the call in warranty stricken out.
    The evidence showed that the attorney who had defended the curator ad hoc in the partition suit, had received the fee allowed by the court for the defence. The receipts of the attorney to the agent of the plaintiff were filed.
    Upon these pleadings and issues, and the evidence of payment, the district judge rendered judgment perpetuating the injunction. The defendant appealed.

      L. Janin, for the plain tiff and appellee.

      Mitchell, contra•
   Bullard, J.,

delivered the opinion of the court.

The facts which led to the present controversy will appear by reference to the case of Cooley vs. Beauvais, decided by this court last January term. 9 Louisiana Reports, 85.

It appears, in the present case, that Beauvais ordered out an execution against Madame Mourain, to coerce the payment of a sum of five hundred dollars, allowed him by the District Court, as her curator ad hoc, which was levied on a slave belonging to her. She procured from the District Court an injunction to stay proceedings, on the allegation that previous to the issuing of the execution, the sum thus allowed had been paid to the attorney of Beauvais.

The defendant, in the injunction in his answer, admits he was appointed curator ad hoc, and that a sum of,five hundred dollars was allowed him for his trouble and expense in representing the plaintiff; but he denies that any part of the sum had been paid to his attorney, or that he ever authorized any agent or attorney to receive the same. He further alleges, that so far from having done so, the order of the District Court, making him that allowance, had been, on the 18th January, 1836, declared by the Supreme Court null and void, in a suit of T. J. Cooley against him. He therefore prays that the injunction may be dissolved, and that he may have judgment against the plaintiff and her security, jointly and severally, for the sum of five hundred dollars in damages. He further prays that T. J. Cooley may be made a party, and that should it appear that he had received the said sum from Madame Mourain, or her agent, in the name of, or as agent, or in any other character in which he may have assumed to represent the respondent, that judgment may be rendered in his favor against Cooley for that sum, with damages and costs.

The Court refused to issue process of citation to Cooley, and to make him a party, and a bill of exceptions was taken, and the injunction having been made perpetual, the defendant appealed.

We are of opinion the court did not err in overruling that part of the defendant’s answer, by which he sought to make Cooley a party, as in the case of simple or personal warranty. Cooley either was or was not the attorney of Beauvais, in obtaining the judgment which he sought to enforce. If he was, the payment to him was a good payment, as alleged by the plaintiff in her petition, and the execution issued wrongfully. If he was not, then we are brought to the question how far an agent, or curator ad hoc, can be permitted to obtain an ex parte judgment against his own principal, and enforce it by execution. In either case we see no necessity for the attorney, real or pretended, being made a party. The professed object for bringing him in, was to compel him to pay over the amount, if he had acted as attorney or. agent, or in any other way assumed to represent the defendant. That he was the attorney of record, on whose motion the allowance was made, is most manifest, and the defendant, by ordering out an execution, has ratified the act. But there is a singular inconsistency in the answer of the defendant. At the same time that he alleges that the Supreme Court has declared that part of the judgment null and void, he maintains his right to cause it to be enforced against the plaintiff. If his premises were true, that this court had annulled that part of the judgment, his conclusion should have been, that the execution be set aside; and as relates to Cooley, that he should be condemned to refund the money to Madame Mourain, and npt to pay it over to himself. In every view of the case, we are of opinion that the District Court correctly perpetuated the injunction.

Payment made to the attorney on the record is a good payment.

The curator ad hoc cannot obtain an ex parte judgment against the person, whose interest in a suit he was appointed to defend, for his fee or compensation.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


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    HART vs FISK.
    Eastern Dist.
    February, 1837.

    APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE OF THE SECOND PRESIDING.
    The appeal must be made returnable to the next term, if there is sufficient time to cite in the appellee. If the transcript of the proceedings cannot be made out in time to be filed, on or before the return day, the appellant may obtain further time to bring up the record, on application to the court.
    The return day of the appeal cannot be postponed by the judge a quo, for the purpose of giving time to make out a transcript of the record.
    The plaintiff recovered a judgment against the defendant at the April term, 1836, of the Iberville District Court, which was rendered by the judge of the second district, who was required by law to hold that term.
    On the 29th of October following, the defendant prayed an appeal to the Supreme Court. This application was made to the judge of the fourth judicial district, at chambers. The 'appeal was granted, and made returnable “ on the fourth Monday of December next, there not being time to make up the record for the November term,” &c.
    The record was filed on the return day.

      Stacy, for the plaintiff and appellee,
    moved to dismiss the appeal, because it was made returnable to an improper term. It should have been made returnable to the November term, which was the next term following the period of granting the appeal. '
    2. There was sufficient time to have cited the appellee to the-next term after the appeal was allowed, and no excuse or legal delay can be admitted in favor of extending the time to December. Vide Code of Practice, articles 583, 585. 3 Louisiana Reports,-467.

      Lobdell, contra.

    1. As the record contained the judgment appealed from, with the documents and all the evidence of the case, which 'the appellant was bound to file on the return day, the judge might, with great propriety, extend the return of the appeal as be did, to enable the record' to be made up.
    The appeal must be made returnable to the next term, if there is sufficient time to 'cite in the appellee. If the transcript of the proceedings cannot be made out in time to be filed on or before the return day, the appellant may obtain further time to bring up the record, on application to the court*
    The return day of the appeal cannot be postponed by the judge a quo for the purpose of giving time to make out a transcript of the record.
    2. It was necessary that this extension of the return day should be allowed, in order to make out, and serve the citations in due time.
    3. The judge a quo had a right to extend the return day to December, if there was not time to cite in the appellee, and this was, no doubt, one of the reasons of the extension given.
   Martin, J.,

delivered the opinion of the court.

The appeal was allowed on the 29th October, 1836, and made returnable on the fourth Monday of December following; the judge having expressed his opinion “that there was not sufiicient time to make up the record for the November term.” The counsel for the appellee contends, that the appeal ought to be dismissed, because the authority of the judge to make an appeal returnable to any other term than that immediately succeeding the allowance of the- appeal, is restricted to cases in which there is not suificient time for the citation of the appellee. Code of Practice, 583.

As soon as the appeal has been allowed, and the appeal bond executed, the appellant is bound to obtain from the clerk a citation, and a copy of the petition of appeal, which he is to deliver to the sheriff for immediate service, unless the clerk has done so before. Code of Practice, 581. The transcript of the proceedings may be made afterwards, Ibid., 585; and if it cannot be made before the return day, the appellant may obtain further time to bring up the record on application to this court, Ibid., 883. The return day of the appeal cannot be postponed by the judge a quo, for the purpose of affording time to make a transcript of the record. The appeal must, therefore, be dismissed.


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    SMITH'S HEIRS vs. BLOUNT.
    Eastern Dist.

      February, 1837.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTBICT, THE JUDGE OF THE EIGHTH PRESIDING.
    A citation of appeal, without the signature of the clerk of the court from which it issued, is insufficient, and the appeal will he dismissed.
    The seal and signature of the clerk of the court are essential, and must be affixed to the citation, and all process issuing therefrom.
    win be- dismis-A citation of appeal, without the signature of the clerk of the court from which it issued, is insufficient,
    se^he seal an(1 signature^of the court are essen-^ust¿® citation and ail process issuing therefrom.
    The plaintiffs took an appeal in this case. There was no signature of the clerk of the court appealed from affixed to the citation of appeal, although one had issued, and service made by the sheriff.

      Johnson, for the appellee,
    moved to dismiss the appeal, because there was no citation according to law.

      Lobdell, contra.

   Martin, J.,

delivered the opinion of the court.

The appeal is prayed for on the ground that there has been no citation of appeal in this case, as required by law. The citation is without the signature of the clerk of the District Court. We have held that the seal of the court is is essential to such process. The signature of the clerk appears to us equally so. The appeal, therefore, must be ■J 1 . , * ** *1 dismissed.

Where the citation of appeal has not heen returned by the sheriff, and does not accompany the record, the appeal will be dismissed.


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    TOMPKINS vs. BRADFORD.
    Eastern Dist.

      February, 1837.
    APPEAL FROM THE COURT OP THE THIRD JUDICIAL DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.
    Where the citation of appeal has not been returned by the sheriff, and does not accompany the record, the appeal will be dismissed.
    The defendant appealed from a judgment in this case. There was no citation accompanying, or attached to the record, and none appeared to have been served or returned by the sheriff.

      Bradford, for the plaintiff and appellee,
    moved to dismiss the appeal, on the ground that no legal citation had issued, or had been served in the case, nor had any original writ of citation been returned to thi? court.

      Penn, contra.

   Martin, J.,

delivered the opinion of the court.

The dismissal of the appeal'is prayed for on the ground that no legal citation was issued or served in the case, nor has any original been returned into this court.

The sheriff has made no return; the appeal must, therefore, be dismissed.


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    LANDRY vs. STANSBURY.
    APPEAL FROM THE COURT OF THE SECOND JUDICIAL DISTRICT, THE , ' JUDGE THEREOF PRESIDING.
    No recovery can be had of the endorser, if demand of payment be not made on the maker, or on his heirs or legal representatives, if he be dead, unless the impossibility of making such demand is shown.

      Eastern Dist.

      February, 1837.
    Where the maker of the note is dead on the day it is due and payable, and an administrator is appointed, it is unnecessary to make a demand on him, in order to bind the endorser, because he is not authorized to pay any claim against the estate until the expiration of a certain period of time.
    This is an action against the endorser of the following promissory note:
    $2000. “Donaldsonville, (La.) Nov. 11th, 1830.
    “In all the month of March, 1834. I promise to pay to Mrs. Maria Stansbury, or order, the sum of two thousand dollars, for value received.”
    “FRANCIS A. BOND.”
    Endorsed, “ Maria Stansbury.”
    The plaintiff alleges, that when said note became due and payable, to wit, on the 3d April, 1834, it was presented at the domicil of the drawer, and payment demanded, and there being no funds there to pay the same, it was protested by a notary, for non-payment, and due notice thereof given to the defendant. - He prays judgment for the amount of the note, interest and costs.
    The defendant admitted her signature, and pleaded a general denial. She further averred, that she was not liable, as endorser, because the note was not legally protested, and that she was not legally notified thereof.
    The notary states in his protest, that on the day the note became due, he went to the domicil or residence of the drawer, where he found no white person on the premises, and the doors of the house fastened. He then protested the note, and deposited the notice of protest in the post-office of the parish where the endorser resided, enclosed and directed to her in a letter.
    The evidence showed that Francis A. Bond, the maker, died, and that Narcisse Landry, the plaintiff and holder of the note sued on, was appointed administrator of his estate on the 11th day pf January, 1834. It was admitted that the only demand of payment was made at the late domicil of the deceased, as stated in the protest. No demand was made 0f administrator, who was himself the holder of the note.
    Upon this evidence the district judge rendered judgment foi' the plaintiff, and the defendant appealed.,

      Adolphe Seghers, for the plaintiff,
    maintained that the judgment was correct. The demand of payment was properly made at the drawer’s residence, after he had died, when it is not shown he had left any heirs in the state. A demand on the administrator was unnecessary, as he was the holder. If the banker is himself the holder, it is sufficient for him to see whether he has sufficient funds. 10 Martin, 18, 645. Pothier, contrat de change, JYo. 146. Chitty on Bills, 268. Bayley do., 128. '

      Ilsley, contra,

    relied on the case of Toby vs. Maurian, 7 Louisiana Reports, 493.

      J. Seghers, for the plaintiff,
    argued and cited authorities to show that notice of protest in this case was regular.
   Martin, J.,

delivered the opinion of the court.

The defendant, sued as endorser of a promissory note, is appellant from a judgment against her, and seeks to be relieved under an allegation that no demand was made from the drawer or his representative, and that no legal- notice was given to her.

The facts of the case are these : The drawer died, and an administrator was appointed to his estate before the date or period at which the note became payable. On that day the notary went to the domicil, or late residence of the drawer, but found no white person on the premises; and he certified that notice was served on the defendant by a letter directed to her, in the parish of Ascension, and deposited in the post-office at Donaldsonville, on the day following that of the protest.

The reversal of the judgment is claimed on the authority of the case of Toby vs. Maurian, 7 Louisiana Reports, 493; in which we held that “ no recovery can be had of the endorser, until demand of payment has been made on the drawer or maker, or on his heirs or legal representatives, if he be dead, unless the impossibility of making such a demand be shown.” In that case, there had been no administrator or curator appointed to the estate of the drawer. The demand, therefore, might have been made of bis heir or widow in community. In the present instance, there -was an administrator legally appointed, contrarily with whom alone all claims against the estate were to be settled. In the case of Hale vs. Burr, 12 Massachusetts Reports, 86, the Supreme Court of that state decided, that when the legal representative of an estate is prohibited by law from paying any claim against it until after the expiration of a twelve-month, no demand need be made on him for the payment of any note of the deceased, becoming payable within that time, in order to charge the endorsers. Administrators in this state being under a similar prohibition, it follows, that the demand on them would be nugatory, as they are under no legal or moral obligation to comply therewith. Lex neminem corgit ad vana. This case is very different from that of Toby vs. Maurian, and cannot be distinguished from that of the case of Hale vs. Burr, decided by the Supreme Court of Massachusetts referred to.

No recovery can be had of the endorser, if demand of payment he not made on the maker, or on his heirs or legal representatives, if he be dead, unless the impossibility of making such demand is shown.

■Where the maker of the note is dead on the day it is due and payable, and an administrator is appointed, it is unnecessary to make a demand on him, in order to bind the endorser, because he is not authorized to pay any claim against the estate until the expiration of a certain period of time.

The notice appears to us to have been legally given.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


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    HUNTSTOCK vs. HIS CREDITORS.
    Eastern Dist.
    February, 1837.
    APPEAL PEOAI THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    The service of citation of appeal is to be made in the same manner as is required by law in courts of ordinary jurisdiction.
    So the service on a commercial firm must be made on either of the partners in person, or by leaving the citation at ¿heir store or counting house, and delivering it to their clerk or agent.
    In this case, the syndic of the creditors of Huntstock filed his tableau of distribution, and placed Reynolds, Byrne & Co. thereon, as chirographery creditors, for the sum of fourteen thousand one hundred dollars. They made opposition, and claimed to be recognized as mortgage creditors, and paid as such. The district judge rendered a judgment in their favor, from which Thomas Smith- & Co., also creditors of the insolvent, appealed.
    A citation was issued to the commercial firm of Reynolds, Byrne & Co., on which the sheriff made the following return: “Received June 4, 1835, and served on the same day, a copy of petition and citation of appeal, on Reynolds, Byrne & Co., by handing the same to Charles Briggs, a free person, above fourteen years of age, a clerk of the house of Reynolds, Byrne & Co.”

      Boyle, for the appellees,
    'moved to dismiss the appeal in this case, on the ground that there was no legal service of citation of appeal on the appellees.

      Lobdell, for the defendant,
    maintained that the service of citation was good. The Code of Practice, article 684, requires service of citation of appeal to be made in the same way as in ordinary cases.

      %. The Code then provides, that service must be made by delivery to the defendant in person, or by leaving the citation at his domicil, with a free person, apparently above fodrteen years of age, living in the house. This is the mode in relation to ordinary cases and persons. Code of Practice, articles 187, 189.
    The service of citation of appeal is to be madeinthesame manner as is required by law in courts of ordinary jurisdiction.
    So the service on a commercial firm must be made on either of the partners in person, or leaving the citation at their store or counting house, by delivering it to tlieir clerk or agent.
    3. But when a commercial firm is sued, the citation must be served on the partners in person, or left “ at their store or counting house, by delivery to their clerk or agent.” Here the sheriff made his return in writing, as he was required, stating that he had served a copy of the petition and citation of appeal on the appellees, Reynolds, Byrne & Co., by handing the same to Charles Briggs, a free person, above fourteen years of age, a clerk of the house of Reynolds, Byrne & Co. This ought to be considered as fully sufficient. Code of Practice, articles 188, 189, 200.
   Martin, J.,

delivered the opinion of the court.

There is a motion in this case to dismiss the appeal. • The dismissal is asked on the ground that there is no citation attached to the record, nor does it appear that the appellees have been cited. The citation is on file in the record. It appears from the sheriff’s return that the appellees (commercial partners) were cited, by delivering a copy of the citation and petition to Briggs, their clerk, a free person, above the age of fourteen years. It does not state at wThat place the service of this citation was made.

The service of the citation of appeal is, by the Code of Practice, article 584, required to be made in the same manner as when a defendant is cited to appear before a court of original jurisdiction. In these courts the Code of Practice, article 198, paragraph 5, requires the service of citation to be made in the following manner; “ In suits against any commercial association, trading under a title, or as a firm, on any of the partners in person, or at their store or counting house, 'by delivery to their clerk or agent.” Neither of the appellees was cited in person, nor was any service made at their store or counting house. The appeal must, therefore, be dismissed, with costs.


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    MOORE vs. ALLAIN.
    EASTERN DlST.
    February, 1837.
    APPEAL FROM THE COURT OF THE FOUltTH JUDICIAL DISTRICT, THE' JUDGE OF THE DISTRICT PRESIDING.
    In a petitory action, the defendant in possession, who declines title and indicates the name of his lessor, may be dismissed, and the person claim- ' ing title must be made a party. " ,
    The hypothecary- action is a proceeding in rem, and when brought against the mortgaged property, it follows it as a real right into whatever hands it may be found. The third person claiming it must either give up the property or pay the mortgage debt.
    The person in the occupancy of mortgaged property, cannot get himself discharged from an hypothecary action, on indicating the name of his lessor. He may notify the latter to appear and defind the property.'
    The_ occupant or tenant of mortgaged property is not liable for costs'in an hypothecary action against it. It is a proceeding in rem, and the property must pay. ’ ,
    This is an hypothecary action. • The plaintiff alleges that one John Nicholls was appointed his tutor in April 1819, and failed to render an account or pay over the amount due to him. That he obtained a judgment against his said tutor for the sum of seven thousand nine hundred and eight dollars, upon which execution issued, and was returned no property found.
    He further alleges, that said Nicholls was the owner of a tract of land in the parish of Point Coupee, at the time of his appointment to the tutorship, which is now in the possession of Sosthene Allain, and is tacitly mortgaged for the amount of his debt and demand.
    He further alleges, that he has demanded payment of the said debt of Nicholls, the principal debtor, more than thirty days, and given notice to the defendant, Allain, to pay it or give up the mortgages, more than ten days previous to the institution of this suit.

      He prays that the defendant be cited according to law, and that the land be seized and sold to satisfy bis demand, with interest and costs.
    Allain answered and disclaimed title to the property. He further averred that he had leased it from James Erwin as the agent of Mrs. Yeatman, who resides in the state of Tennessee.
    He prays that a curator ad hoe be appointed to defend the interests of said absentee, as his warrantor and owner of the property, and that he be dismissed.
    A curator ad hoc was accordingly appointed to the agent of Mrs. Yeatman, and the cause continued for six months. ,
    The evidence fully sustained the plaintiff’s demand, and the owner of the land not appearing, judgment was rendered in favor of the plaintiff, ordering the mortgaged premises to be seized and sold to satisfy his demand, and that the defendant Allain pay costs. The latter appealed.

      Bradford, for the plaintiff and appellee.
    1. The notice to Allain, who is in possession of the mortgaged property, was given more than thirty days before the institution of this suit, and after a previous demand and judgment regularly obtained against the common debtor. He was therefore bound, either to pay the debt, or give up the mortgaged premises to be seized and sold to satisfy it.

      2. He cannot contest the proceedings in the Probate Court, in which the plaintiff, by a judgment, liquidated his demand against Nicholls, his former tutor.
    . 3. The plaintiff was only bound to proceed against Allain who is in possession, because the real owner of the mortgaged premises, lives beyond the limits of the state. The former was his tenant or agent, and there was no necessity for citing him in warranty; but had he been disposed to have contested the case, could have done it. Code of Practice, article 43.
    4. If an absentee having a tenant in possession, who mortgages property in this state, can procrastinate by claiming to be called in warranty, there is an end to the executory process. The party defeats the law by his own act.
    5. There was no necessity for recording the tutor’s bond Pai''s'h °f Point Coupee, where the property is situated. The appointment of the tutor is the foundation of the mortgage, which is given by law, and exists without being recorded. Louisiana Code, 3298.

      Mitchell, for the defendant,
    maintained that the owner of the property should have been brought in and made a party to this suit. The defendant was merely the possessor and tenant of the owner, and was not bound to defend on disclaiming title.,
    2. The judgment is erroneous, independant of the want of the true party in interest. It should have been in the alternative or conditional, for the sale of the property, if the owner did not pay the debt.
    3. The appointment and surety bond of the tutor should have been recorded in Point Coupee, where the land lies, to operate as a mortgage on it against, and in the hands of a third person. Louisiana Code, 3298, 3314.
    4. If a mortgage ever existed on this property, it has been long since extinguished as regards third persons. Louisiana Code 3333.

      Chinn, on the same side.
    1. Moore having obtained a judgment against his curator, who was appointed in 1819, in Feliciana, instituted this proceeding to subject some lands lying in Point Coupee, to the satisfaction of his judgment, by reason of a lien,resulting from the appointment of his tutor.
    2. About 1824, by authentic act, Nicholls, the tutor, conveyed the estate in controversy, to James Erwin, and it is now, as it appears by the record, holden by Mrs. Yeatman, and by her agent, Erwin, leased to Allain.
    3. The proceeding is in the ordinary way, against Allain only, and an order of sale pronounced by the court, to reverse which, this appeal is prosecuted.

      4. The decree upon its face shows that the estate had been transferred to Erwin. Allain by his answer admits nothing, but simply disclaims any right to the property, and prays that the proprietor may be cited in warranty, or called to respond.
    Was not Mrs. Yeatman a necessary party, and was she not the possessor, which the law contemplated should, or might be sued ?
    5. The suit may be against a third possessor, although he hav§ not the paramount title, but he must be a possessor claiming for himself, and in his own right. " The law never could have contemplated that one could be deprived of his rights of possession or property, by a suit in the ordinary way, without being before the court or having an opportunity of being heard. Can a suit against my overseer be sufficient to turn him from my plantation, and thus divest me of possession ? It may be said that he is a third possessor; that he has the actual, natural possession; the pedispossessio ; but is it such a possession as the law contemplated, when it authorized a mortgage to proceed against the third possessor? In every section the law speaks of the possessor paying the debt or satisfying the lien ; was that to be done by a superintendent, or by the one claiming an interest in the estate ? If the principal debtor be dead, leaving a single heir, who has accepted the succession, he may be proceeded against in the action hypothecarybut suppose the property be leased by the ancestor, may he not still be proceeded against in that form of action? if so, he (and not the tenant) is the possessor. See Code of Practice. But this subject seems to be put at rest by reference to the Civil Code, article 3396 : “ One may possess a thing not only by one’s self, but also by other persons.”
    “ Thus the proprietor of a house or other tenement, possesses by his tenant or by his farmer; the minor by his tutor or curator, and in general, every proprietor by the persons who hold the thing in his name.”
    6. This objection goes to the right of the petitioner to sue Allain, and it is believed, must be fatal to the whole proceeding. In addition, we rely that many irregularities exist «in the cause in the course of its prosecution, which are sufficient for its reversal. The affidavit annexed to the petition is not such as the law contemplates, of whom the demand was made, or at what time does not appear; and upon the trial of the cause, the proof was wholly insufficient to establish the necessary facts; it presented no fact whatever, but contáined deductions only. It is said that the appeal should be dismissed, because there is no statement of facts or bill of exceptions, upon which to found a reversal. This, it is presumed, is not necessary in all cases; if the record shows that the Inferior Court erred, it must be sufficient. Suppose a case of a suit against one, and a judgment against another, would the latter be without remedy Í But this is a statement of facts. The record shows the written and oral testimony which was used on the trial.
    7. If it was not necessary in the first instance to have sued Mrs. Yeatman, the owner of the estate, the one interested in the controversy,..the one interested in redemption, the one interested in showing the extinguishment of the mortgage, the one entitled to claim succession of the other mortgaged estate, a right which belonged to her, and could not possibly be exercised by Allain ; yet after having been made a party at the instance, or on the motion of Moore, for the appointment of a curator ad hoc, then to have dismissed the case as to her, and thereby depriving her of a right to be heard, was most clearly erroneous.
   Bullard, J.,

delivered the opinion of the court.

This is an hypothecary action, in which the plaintiff seeks to make the amount due-him by his former tutor, on a final settlement of his accounts, by the seizure and sale of a tract of land, formerly the property of his tutor, and now in the occupancy of the appellant. In answer to the petition, the appellant disclaimed any title to the property, averring that he leased the same from James Erwin, as the agent of Mrs. Yeatm'an, of Tennessee. He therefore prayed that a curator ad hoc might be appointed to defend the interest of the absentee, wbo he prays may be cited in warranty, to defend this suit, as owner of the property, and that he may be dismissed with costs. Accordingly, a curator ad hoc was appointed, who was cited, and the case was continued for ,six months. At the next succeeding term of the District Court, no answer having been filed on the part of the absentee, the court overruled or rescinded the order for calling in the warrantor, and no further opposition being made by Allain, the court pronounced a judgment, ordering the sale of.the mortgaged property.

!n a, action the defendant in posses-^¡¡nes title and indicat<;s the name of his lessor, _ may be themiSSedperson a part}'-.

All those arguments which have been addressed to this court, on the part of the appellant, relate to a want of evidence of legal demand on Nicholls, the mortgagor, and the insufficiency of the affidavit at the inception of these proceedings,- and to the regularity of the proceeding in the suit of Moore against his tutor, may be answered by saying, that the defendant did not put those matters in issue by bis answer. He chose to make no opposition further 'than to disclaim any title in the premises, and to demand that the absent owner should be cited in warranty. The only questions, therefore, which this court can properly entertain are, whether the plaintiff was bound to make the person, indicated by the defendant as the owner, a party, and to carry on the suit contradictorily- with him, and whether the court erred in disregarding the call on the absentee, and proceeding to judgment without him.

It has been strenuously urged, in argument, that-the law requires the hypothecary action to be brought against a possessor of the mortgaged premises, who has some interest in making opposition, sorne right to abandon, and who has the right of possession, and not against a mere tenant, whose 3 . r . ", -it - -i • possession is that of his lessor, and who is without interest to contest the claim, to plead discussion, or to pay the debt rather than abandon the property to be sold. In prosecuting , , L 1 *1 1 ° a petitory action, it is true, the defendant m possession, who disclaims title, and indicates the name of his lessor, may be dismissed, and the person claiming title or possession must be made a party. Code of Practice, article 43. But the hypothecary action is governed, by different rules, and is essentially a proceeding in rem. It is an action which is brought against the mortgaged property, in order to have it seized and sold. It follows the property in whatever hand it may be found. Articles 61, 62. If the hypothecated property be in the possession of a third person, the creditor has his action against that person, in order to compel him •. 1 either to give up the property, or to pay the amount ior which it is mortgaged. Article 68. No part of the Code of Practice requires that the person in the real occupancy of ^ 1 1 ** the property shall be discharged from the action on his indicating the name of his lessor. And in the present case the plaintiff was not bound, in our opinion, to proceed against 1 , , 1 " 1 . ° „ the supposed owner, who was absent. I he appointment of cuva¿or ]l0C and notice to him, was required by the defendant, and it was not the fault of the plaintiff, if the lessor did not see fit to step forward and defend his tenant, and make opposition to the order of seizure and sale. A'delay of six months was given for that purpose, and it was not for the plaintiff to ask a judgment by default, on the failure of the absent owner, by his curator ad hoc, to answer the demand made against him by the original defendant,

The hypothe-proceeding 1Sin rem, and when brought against the mortgaged lowsTt^s a real right into whatever hstids it may he found, Mssor'1 claiming it, must either give up the property or pay the mortgaged debt.

the occupancy of pert^cannotget charged from añ hypothecary acing the name of may^notify die latter to appear property.

The occupant or tenant of mortgaged pro-bhffor MstsTñ an hypothecary action against it. It is a proceed-the m property must pay.

The judgment of the District Court is, however, erroneous, jn rendering the appellant personally liable for costs, and in . this respect it must be reformed.

is> therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and J ° 5 reversed, and proceeding to give such judgment as ought, in our opinion, to have been rendered below, it is further ordered and decreed, that the tract of land described in the petition, be seized and sold, according to law, to satisfy the judgment recovered by the plaintiff against John Nicholls, for seven thousand nine hundred and eight dollars, together with the costs of this proceeding, and the sale of the mortgaged premises, and that the plaintiff pays the costs of this appeal.


text:
    HODGE'S HEIRS vs. DURNFORD'S CURATOR.
    EASTERN DlST.
    February, 1837.
    ArFEAL FROM THE COURT OF PROBATES FOR THE' PARISH AND CITY OF NEW-ORLEANS.
    An interlocutory judgment of the Court of Probates, ordering a curator to account, may be relieved against, on appeal from such final judgment as may be rendered, and does not work an irreparable injury; it therefore cannot be appealed from.
    This is an application for a mandamus, commanding the • judge of probates to grant an appeal from an interlocutory judgment, ordering the curator of Durnford’s estate to render an account.
    The plaintiffs allege, that David Hodge, their ancestor, died in Louisiana, in 1791, leaving a very large estate,, consisting of real and personal property, and a will, by which he bequeathed the whole of it to his brothers and sisters, and their decendants in Scotland, and England, and constituted Thomas Durnford, of New-Orleans, and others, testamentary executors. Durnford, by appointment of the other executors, took upon himself the administration of the succession, as sole executor.
    That after many and repeated applications through agents, the plaintiffs, and those in whose rights they now appear, succeeded in compelling the said executor to render an account, which was defective and unsatisfactory, and many exceptions filed thereto. They pray that said Durnford be cited to answer, and pay over such sums as may be in his hands on settlement, and that he deliver up all the books, vouchers, &c. . This suit was filed in 1823."
    The defendant denied the capacity of the plaintiffs to sue as heirs of Hodge, and pleaded prescription. It was further denied that Durnford ever accepted the trust of executor, as alleged, and that the succession of Hodge was opened under a foreign government, and that this court was never seized, and could not take cognizance of it.

      Duraford died while these proceedings were going on, and John M'Donough was appointed curator of his vacant estate. The judge of probates ordered that the curator should file, an account of the administration of said Duraford, within a fortnight from the notification of this order.
    The curator prayed an appeal from this order, which was refused by the judge.

      Grymes, for the curator,
    moved for a rule to show cause why a mandamus should not issue, commanding the judge of probates to grant an appeal.
    The judge gave as his reasons for refusing the appeal, “ that all the points in controversy between the parties not being decreed, the judgment rendered, and from which the appeal is prayed, is merely interlocutory, and cannot be appealed from. Code of Practice, 539. It does not cause an irreparable injury, and the party can have the benefit of his exception to it on a final judgment.

      Grymes and Strawbridge, supported the motion on the ground,
    that from the gre,at lapse of time since Duraford undertook the executorship of Hodge’s estate, it was impossible for his curator to make out and file an account; that while the order stood, he was compelled to do it, or submit to imprisonment. In this respect the injury would be irreparable.

      D. Seghers, on behalf of the judge in showing cause,
    maintained that the judgment intended to be appealed from, was not definitive. Code of Practice, 539, 567. ,

      %. That it does not cause an irreparable injury to the party seeking to appeal. Ibid. 566.
    3. The judgment is only interlocutory, and does not authorize an appeal. Ibid. 538.
   Martin, J.,

delivered the opinion of the court.

To a rule to show cause why a mandamus should not issue to the judge of the Court of Probates of the parish of New-Orleans, commanding him to allow an appeal in this case, Jhe answered, “ that the judgment intended to be appealed from is not definitive. Code of Practice, 539, 565. That the judgment does not cause irreparable injury to the party wishing to appeal it. Code of Practice, 566. That the judgment is only interlocutory. Code of Practice, 538. The whole more fully appearing by an annexed certified copy of the judgment of the court, refusing the appeal.” The judgment appealed from, orders the curator to file into court within a fortnight, an account of the administration of Durnford, as the testamentary executor of plaintiffs’ ancestor.

An interlocutory judgment of the Court of Probates, ordering a curator to account, may be relieved against, on appeal from such final judgment as may be rendered, and does not work an irreparable injury; it therefore cannot be appealed from.

The defendant’s counsel has contended that this is an extreme case, Durnford having entered on the execution of the will long before the cession of this country'to the United States; the succession of Hodge having never been opened in any court of the territorial or state government; the, executor having died several years ago, and his curator being without the means of presenting the account required, and being, consequently, liable to imprisonment, unless relieved by this court. The succession of Durnford appears to have been opened in the Court of Probates for the parish of New-Orleans, and it is from the funds of that succession that the plaintiffs seek compensation for the injury alleged to have been done to them by the neglect of the executor to account. It matters not, therefore, whether any court of the late territory, or of this state, was ever seized of the testamentaria of their ancestor.

The judgment is certainly an interlocutory one, from which no appeal lies, unless it works an irreparable injury ; that is to say, such an injury, which, on an appeal from the final judgment in the cause, cannot be relieved against by this court. We must presume that the Court of Probates will be satisfied with such an account as the curator is- able to render under all the circumstances of this case. If, on such an account being rendered, the court proceeds to give an erroneous judgment, the path to redress is clear. We are aware of the difficulty attending the rendering, contesting and settling long and intricate accounts, of several years standing, and of the utility of avoiding all those difficulties, when the rendition of such accounts cannot be legally claimed. But the case would be worse, if those who are entitled to demand such accounts could be delayed by an appeal, especially in the western part of the state, until their demands were fairly established in this court, and the case returned to the lower court for the rendition of the account. The rule must, therefore, be discharged.


text:
    TRAVERSO ET AL. vs. ROW ET AL.
    Eastern Dist.

      February, 1837.

    API’EAI. FROM THE COURT OF PROBATES FOR THE PARISH OP WEST FELICIANA.
    If the record has not been filed on the return day, the appellee may, on the third day thereafter, if it is not filed, obtain the clerk’s certificate to that effect, and obtain execution of the judgment below; or he may bring up the record himself, and have the appeal dismissed.
    But if the appellee wait until the transcript be actually filed, although it may not be brought up until after the lapse of three judicial days from the return day, he cannot avail himself of any advantage resulting from its not being filed in due time.
    A judgment of partition cannot be amended or altered on an appeal, except contradictorily with all the parties interested, and to the original suit.
    If the appellant wishes to withdraw his appeal, he must do it on motion to the court a quo, before he has the appellee cited in.
    This is an action of partition, instituted in the Probate Court, by a portion of the heirs of Margaret Coleman, deceased, against their co-heirs, one of whom (Charles Jones) is an absentee, demanding a partition of the succession of said decedent.
    The probate judge decreed a partition, which was unsatisfactory to two of the heirs, and they appealed. The appeal bond was given to John Traverso, and, others, without naming any other of the heirs especially.

      If the record g“d on*the return „ dar> the appellee may, on the third day is^ofíUed’ob-^"tfcatefothat effect, and obtain Judgmentbeiow^ u^the^recorl himself, and dfJmissed.appeal
    The appeal was granted the 3d of October, 1836, and made returnable to the third Monday of January following, in the Supreme Court. The third Monday came on the 16th day of January, and the record was not filed until Wednesday, the 18th. The next day a motion was made to dismiss the appeal.

      Bradford and Patterson, for the appellees.
    1. They contended that the record was not filed in time, and the appeal should therefore be dismissed.

      2. The heirs and parties, appellees, have not all been cited in the appeal, and service is defective, as relates to some of the others. On this ground the cause cannot be tried on its merits.

      Boyle and Johnson, contra,

    maintained the right of the appellants to move for a withdrawal of the appeal, in order to have all the parties cited in. Code of Practice, 595.

      2. The appeal was filed in. time, being within three judicial days from the return day.
   Martin, J.,

delivered the opinion of the court.

This is an action of partition, in which the plaintiffs had judgment, and the defendants appealed. The dismissal of the appealed is prayed for, on the grounds that the record was not brought up on the return day, and that all the plaintiffs were not made parties to the appeal. It was made returnable on the third Monday of January, being the 16th day of that month, and the record was filed on the following- Wednesday, . ° J 3 being the 18th of the same month. On the 19th, the day following, the motion to dismiss was filed. The Code of Practice, article 589, gives to the appellee, when the record has not been brought up on the return day, the right of obtaining, three days thereafter, the certificate of the clerk, that the transcript has not been filed, or to bring up the record himself, and obtain judgment on the dismissal of the appeal, in the same manner as if the transcript had been brought up by the appellant.

But if the ap-pellee wait until the transcript be actually filed, although it may not be brought up until after the lapse of three judicial days from the return day, he cannot avail himself of any advantage resulting from its not being filed in due time.

A judgment of partition cannot be amended or altered on an appeal, except, contradictorily with all the parties interested and to the original suit.

If the appellant wishes to withdraw his appeal, he must do it on motion to the court a quo, before he has the appellee cited in.

As the clerk’s certificate must state that the transcript has not been brought up, not that it was not brought up in due time, it follows that the appellee cannot have this .certificate after the transcript has been actually filed; and as in courts of original jurisdiction, the plaintiffs’ right to take judgment by default, on the failure of the defendant to answer in due time,.is destroyed by an answer filed thereafter, but before the right be exercised, it seems to follow that if the appellee wishes to avail himself of the neglect of the appellant in filing the transcript'on the return day, he should exercise his right immediately, and not to wait until the' transcript be actually filed. We think the laches of the appellant, in this particular, were caused by his posterior filing of the transcript on the day preceding’that on which the appellee sought to avail himself of these laches.

As in a judgment of partition, the judgment cannot be amended in favor of either of the parties, without being disturbed in what concerns the others, it follows, that it cannot be touched except contradictorily with all the rest, therefore as all the parties to the judgment are not before us, it follows, we cannot inquire into its correctness. If the appellant wished to avail himself of the article "595 ‘ of the Code of Practice, he' should have done so in the Court of Probates. ' Nothing authorizes us to remand the case to that court for further citation, as suggested. The appeal, therefore must be dismissed.