Oakey v. Ducker , 13 La. 375 ( 1839 )

Rost, J.,

delivered the opinion of the court.

The plaintiffs, residing in the parish of New-Orleans, sued out an attachment against the property, effects, rights and credits of the defendant, whom they alleged to be a resident of the state of Mississippi, and the sheriff attached under it a parcel of cotton deemed of sufficient value to satisfy the claim. The return of the writ bears date the second Monday of June, 1837. On the 23d of the same month, the defendant came into court and filed an exception, praying for the dismissal of the attachment, and that he might be dispensed from answering to the merits, on the ground that he was a citizen of the state of Louisiana, residing in the parish of Concordia. In November following, upon the suggestion of counsel, that the defendant had died since the institution of the suit, leaving a minor daughter his only child and heir, the court appointed a curator ad hoc to represent her, and ordered that he be made a party to the proceedings. The curator came into court, and filed a plea to the jurisdiction, on the ground that the succession of the defendant had been opened in the parish of Concordia; that one Edward Sparrow had been regularly appointed there curator of absent heirs, and was administering the succession, and that all actions for money, pending in the state against the deceased at the time of his death, must be cumulated -and prosecuted before the judge of the place where the succession is opened, contradictorily with the curator.

The facts set forth in the answer of the curator ad hoc are admitted to be true, and upon them the Parish Court decreed that the cause be transferred to the Probate Court of Con-cordia, in the situation in which it then was,, there to be cumulated with the proceedings in the succession of the defendant. From this judgment, the plaintiffs appealed, -

In an attachment case commenced in the New-biieans, °f where the defendant died during the pendency of that 'the' power of the court of tion ceased, and orderedUS to "be thTcmirTofPro-bates for the parish in'which the succession was succes-res’d °t V’™" in the state is paiíshwhereíe owned real estate; or in the parish in which fects1 are Psituated, if he had effects in several parishes; or in lm^hedj1 If °he had no urnnoveable property in the state. ' money must be Court'of"'Probates for the thebuccession is "he deceased had his residence and domicil in the state, or out oflt‘

Their counsel have contended in this court, that the succession in Louisiana is merely ancillary to the principal administration in the state of Mississippi, and is not governed by the general laws which regulate the settlement of sue-J ° ° cessions; and farther, that property belonging to minors who reside out of the state may be attached for debt in our courts.

jf the first ground assumed was well founded in law, the ... .. .. . . . . . , facts of this case would not bring the plaintiffs within the exception. There is no proof in the record, showing that the defendant died in the state of Mississippi: that he had pro- . 11 perty there, and that his estate is under a regular course of administration, at the place of his alleged residence. The evidence shows, that his daughter resides in Philadelphia, and that he never had his family with him. We could, under no circumstances, take this case out of the usual COLirse administration here, unless it was shown that another existed elsewhere ; but we are of opinion that, under , , ...... , 4 the law, the distinction contended for does not exist.

Article 929, of Louisiana Code, provides that the opening of a succession takes place in the parish where the deceased owned real estate, if he had neither domicil nor residence in this state > or in the parish in which it appears by the inventory his principal effects are situated, if he had effects in •; 11 . . different parishes; or, finally, in the parish where the deceased died, if he had no residence nor immoveable effects withill tile State,

These provisions embrace all ancillary successions; they do not in any manner distinguish them from others, as to the ixl0C]e 0f administering them: and article 924 of the Code of ° 7 J Practice, which gives to the Court of Probates of the place where the succession is opened, the exclusive right and Power to decide on claims for money, which are brought successions administered by curators, executors or administrators, applies to them as well as to those of persons who had their residence and domicil in the state at the time 0f their death.

, . , . In the cases relied on by the plaintiffs’ counsel, in support of the second point made, the successions were either not administered by curators, executors or administrators, or the time of their administration had expired; and the seizin had vested in the heirs. In all such cases, minors, like other persons, are liable to the ordinary jurisdiction of our courts. 1 ‘ . . J . There is no proof of the time at which the curator of absent heirs was appointed, but the defendant must have died after June, 1837, and the judgment was rendered by the Parish Court in January, 1838. The year of the curator’s administration had not expired, and while it lasted, the Parish Court was without jurisdiction.

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