Dwight v. Mason , 12 La. Ann. 846 ( 1857 )

Buchanan, J.

This suit was commenced by attachment against two absent defendants, Drury Mason and Delila Mason.

One of the defendants, Delila Mason, having died since the commencement of this suit, her estate was administered upon in the parish of St. Mary (where this suit was pending,) and her administrator, Gharles B. Muggah, who had already been cited, as garnishee, under the attachment herein, was cited anew in his administrative capacity, and filed an answer in said capacity upon the merits, to wit: the general issue. The curator ad hoe appointed by the court to represent the other defendant, Drury Mason, also filed in his name a general denial.

Upon these issues the parties went to trial, and judgment was rendered in favor of plaintiff. But upon the motion of the administrator of the one defendant, and of the curator ad hoe of the other, a new trial was granted and the court below gave judgment of nonsuit, as to both defendants, on the ground that the Sheriff had not made a seizure of the property of defendant, which the answers of the garnishee, Olíanles B. Muggah, acknowledged to be in his hands.

We think the court erred. The garnishee’s answers to interrogatories were filed on the 11th July, 1853, and acknowledged the possession of slaves which had been adjudged to belong to Drwry and Delila Mason. The record of the suit in which those slaves had been so adjudged the property of defendants, is in evidence, and identifies the slaves referred to in the answers of the garnishee. The estate of Delila Mason is in court, independently of the attachment, by the answer of the administrator, filed on the 10th July, 1855. The fact of an administration, sufficiently demonstrates the existence of assets within the jurisdiction of the court; and the curator ad hoc of the other absent defendant Drury Mason, was fully authorized by this state of facts to join issue as he did upon the 9th April, 1857.

It is, therefore, adjudged and decreed, that the judgment of the District Court he reversed ; that the cause he remanded to be proceeded in according to law, and that the appellees pay the costs of appeal.