Hébert v. Jackson , 28 La. Ann. 377 ( 1876 )

Ll'delikg, 0. J.

In 1861 Mrs. Vaughn died. She left a will, in which Paul O. Hébert was appointed testamentary executor. The will was duly probated, and Paul O. Hébert qualified as executor early in the year 1861. After this, Paul O. Hébert joined the Confederate army, and during the remainder of tho rebellion, in tho capacity of an officer in said army, he bore arms against his country.

In the Succession of Poindexter, reported in 19 An. 22, and in the case of Vogel, reported in 20 An. 81, it was decided that “ by refusing to take the oath of allegiance, and going beyond the jurisdiction of the proper-authority, (the executor) became functus officio.”

General Hebert by leaving the Federal lines and joining the enemies-, of the United States forfeited his trust, and the office of executor was, vacant. He was never re-appointed to the office after the war, and he-had no authority to bind Or to represent the succession of the heirs-after the abandonment of his trust.

In April, 1868, Wade H. Gilbert instituted suit against Paul O. Hébert, as testamentary executor of Mrs, Vaughn’s estate, for wages for services rendered to said succession, under a contract with said Hébert as executor; and in 1869 Paul O. Hébert, as executor, confessed judgment. In 1874 execution was issued under this judgment, and the heirs of Mrs. Vaughn enjoined the sale on tho ground, among others, that the judgment is an absolute nullity, because P. O. Hébert, who alone was cited in that suit, was functus officio, and the succession and heirs were not parties to the suit. The objection is well founded, for the reason above stated. A judgment rendered, when the defendants have neither been cited nor made an appearance in the suit, is an absolute nullity. The article 149 of the constitution has no application to the suit. The judgment attacked in this case was rendered after the adoption of the constitution, and the provisions of that article can not by any stretch of construction be made ta revive a trust abandoned.

It is therefore ordered that the judgment of the lower court perpetuating the injunction and declaring the judgment in the suit of Wade H. Gilbert vs. Paul O. Hébert, executor, null and void, bo affirmed with costs. ,