Graham's Heirs v. Gibson , 14 La. 146 ( 1839 )

Strawbridge, J.,

delivered the opinion of the court.

The signature of a constable to a return of ser-made^by^hhn’ wiu be tabe,n as true, without proof _ _ being made of it.

A motion has been made to dismiss the appeal on the ground of insufficient service of the citation.

The return is made by a person signing himself “ A. B., constable.” The errors alleged are:

1st. That a constable is not authorized to serve citations from the District Court.

2d. That there is no proof of his authority.

Article 765 of the Code of Practice, provides, that “ sheriffs may notify and execute the different orders, citations, &c. by means of constables“ they being responsible, however, for the manner in which the constables may perform this duty.”

On the second point, it has been held that our courts will recognize the signatures of officers appointed by the governor, &c. Constables are appointed by the police jury of each parish, and the parish judge administers to them an oath, and files their bond, with security, and delivers, them a certificate of their appointment.

Had the return been made by a deputy sheriff, it would, . , itt it appears to us, have been sufficient; and we would take his signature for true. We cannot perceive how this case differs in principle, when confined to acts of a constable, T . T . , T . „ , . . exercised within the limits of the parish.

We, therefore, overrule the motion, and sustain the appeal.

We now proceed to examine the case on the merits.

This suit is brought by the tutor and under tutor of some minors. The petition states that the parent of the minors, Graham, left a large arñount of real and personal property. “That on the 20th December, 1834, a public sale was made by the Court of Probates for the parish of Carroll, where they reside, of certain lands belonging to his succession,” which they specify. “ That said sale was illegal, null and void. That for more than a year preceding it, the plaintiff had been tutor to said minors, but had no notice of said sale; and that the purchaser at said sale could not legally buy.” They allege various other illegalities, and conclude wfith a prayer that they be decreed to recover the said property; be adjudged owners of the same, and put in possession thereof. That the probate sale, before set forth, on the 20th December, 1834, and all the proceedings had in relation to it, be avoided, cancelled, annulled and set aside.

The nullity of a probate sale cannot be sought in a direct action in the District Court. The order of sale by the Probate Court is held to be a judgment •which protects purchasers under it.

There was a plea to the jurisdiction of the District Court as to these matters, which was sustained by the judge, and from that decision this appeal has been taken. We do not doubt of the right of the District Court to examine into matters of probate jurisdiction, when they are brought before it collaterally, and vice versa. Nor do we doubt that the Court of Probates is without power to entertain a suit in revendication.

But we do not deem the nullity of the probate sale to have been brought before the District Court in this suit collaterally ; it is the head and front of the suit itself; and the court is called upon to avoid, cancel and annul the acts of the Probate Court, which is, to our view, a direct action of nullity.

The order of sale, it has been held, is a judgment, and that the purchasers under it are protected. 13 Louisiana Reports, 436.

We have just expressed the opinion in the case of Brosnaham et al. vs. Turner, that a party to a judgment cannot question it collaterally. See the authorities there cited.^* Though the present tutor denies any knowledge of this sale, we perceive, by the proceedings, that there has been a former tutor. The sale may have been made by an executor to pay debts, and so the tutors have neither been cited, nor had any knowledge. For these reasons, it appears to us the judge of the District Court properly sustained this exception, and we affirm his judgment, with costs.

* The judgment in the case of Brosnaham et al. vs. Turner, has been suspended, and a rehearing granted.

* This case was decided at the January term, 1839, but suspended by an application for a re-hearing.