Cox v. Bradley , 15 La. Ann. 529 ( 1860 )

Voorhies, J.

The appeal, with regard to the appellant, Isaac Wiggins, administrator, was brought up informally, inasmuch as it was made returnable at the last regular term of the court, in the year 1858, but was brought up only at this term. The other appellant has, however, made him an appellee; aud as all the parties interested in the result are properly before us, the motion to dismiss presented by the plaintiff and appellee cannot prevail.

' The appellants were sued on their bond, as sureties of Calvin J. Bradley, former administrator of Augustus H. Bradley, deceased. The plaintiff was appointed administrator of this estate, and then obtained a judgment against his predecessor for the sum of $2,156 56, besides interest. Having exhausted the legal remedies against the principal debtor, the plaintiff sued the sureties to recover from them the amount of the judgment.

The defendant, Isaac Wiggins, administrator, filed a general denial; but the record does not show that an answer was filed by Wm. C. Bradley. We will, however, notice the points submitted in counsel’s briefs, as a defence to the plaintiff’s action.

It is contended, in the first place, that there is no evidence in the record, establishing the claim set up. The judgment rendered against tho principal debtor is prima facie evidence against the sureties; besides, all the mortuary proceedings of tho estate of A. H. Bradley, deceased, were introduced in evidence.

But it is contended that, inasmuch as the bond was not produced, owing to its loss or destruction, it was the duty of the plaintiff to have taken the oath and proven the advertisements mentioned in Articles 2258 and 2259 of the Civil Code.

The evidence shows, that the former administrator was the deputy clerk in that court; that ho had tho custody of all the papers in that office; that he filled all the ministerial duties of the clerk; that he had tho absolute control over the papers of the estate, of which he was the administrator ; that when he left tho office, the bond was not in the papers, and that after diligent search, the bond could not be found. The genuineness of this document is shown, and its disappearance accounted 'for. Were’ we to decide that the Articles 2258 and 2259 C. C. are applicable to the case of an administrator’s bond, yet, in the present caso, the evidence is so direct, that, under the very terms of the Article, it need not be supported by the oath of the party. With regard to the advertisement in the papers, how could it be expected that the loss of the bond, if lost it was, required publication, as the custodian was the principal debtor ? It were a vain formality, under these circumstances, on the part of the present administrator, to advertise the loss of the bond in question.

The objection, that the defendant, W. C. Bradley, was not properly before the court, because there was no seizure by the Sheriff to support the attachment, is fully answered by the fact of the garnishees’ acknowledgment of indebtedness. 12 An. 846, E. P. Dwight v. Drury, Mason et als.

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