Brown v. Brown , 30 La. Ann. 506 ( 1878 )

The opinion of the court was delivered by

Egan, J.

This appeal is from an order dissolving, on the bond of the defendant, under article 307 of the Code of Practice, an injunction sued ■out of the parish court of Red River to restrain and prohibit the defendant from acting as administrator of the successions of the father and mother of the plaintiff, and especially from proceeding, as he was about to do, to execute a judgment of the district court for that parish, •obtained by the said defendant, in said capacity, against a sister of petitioner, in a suit for the recovery of a valuable tract of land and several thousand dollars rents. The merits of the injunction suit or the propriety of the issuance of the injunction are not before us in this appeal. That its character may be further understood, however, as bearing upon the present appeal, it is sufficient to state that it is alleged among other things that the plaintiff and others interested had brought suit in the parish court from which the injunction was obtained against the same defendant, who was acting as administrator of said successions, to have him decreed not to be the lawful administrator thereof, because there was no order appointing, no advertisement of his application, no commission issued to him, and because he had not taken the oath of office, had not had a proper inventory taken, having only had inventoried a very small property, two or three hundred dollars in amount, and had given a bond of only $éC0, whereas, by his own judicial and other allegations and admissions, the property of the successions which he sought to control was and is worth between fifteen and twenty thousand dollars, and yields a large revenue; all of which, if unrestrained by injunction, would fall into his hands and be possessed and controlled by him, especially through the instrumentality and execution at his instance of the before mentioned judgment of the district court of Red River; all to the great and irreparable injury of the plaintiff and other heirs and parties interested. Besides the insufficiency of bond and other matters stated, it is further alleged that the defendant is insolvent. This injunction proceeding seems to have been sued out in aid of the suit for amotion or destitution as it is called by the plaintiff, if such it can be styled, and the prayer is that the defendant be restrained especially from attempting to control and execute the before mentioned judgment of the district court, and thus possess himself of so large an amount of property of the successions until he shall cause himself to be regularly appointed administrator, and give bond in accordance with law sufficient to cover the true value of the property.

The petition is somewhat inartificially drawn, and the particular act sought to be restrained by the injunction is the provoking by the defendant of the execution of a judgment of the district court not against the plaintiff, but another person, and his thereby obtaining possession and control of largely valuable assets and property of the successions. It is urged that the parish court was without jurisdiction to enjoin the execution of a judgment of the district court, and that, without passing upon tlxe merits of the present appeal, we should so adjudge. The proposition would bo correct if the validity of the judgment itself or its execution were attacked; but such we do not understand to be the case here. It is the right and power of one whose authority is denied to contest and order the execution of the judgment as an act of administration of a succession of which he is not administrator; and the existence and attempted execution of the judgment are only alleged as they affect and bear upon the attempt of an unauthorized person to control and possess himself by that means and through that instrumentality of 'property of the succession, .to the danger and apprehended detriment of the heirs and other parties in interest. The real object of the injunction was then to protect the property of a succession of which the parish court had jurisdiction from the unauthorized control and possession of one who claimed to administer it. by virtue of authority derived from the same court, and while a proceeding was actually pending in the same court which issued the injunction to test his right to do so, or to make him take the oath, give the bond, and have the inventory taken, as required by law. To this real purpose the allegation as to the judgment and execution was merely subsidiary and incidental, and seems only to have been made as would have been the allegation of any other act or fact not involving the judgment of any court through which danger to the succession and heirs was apprehended. Eor this purpose, and with this view, and to this extent, the parish court had jurisdiction as a necessary incident to its power to appoint and remove administrators, and to control the administration of succession property; not to stay the execution of a judgment of the district court, for that we do not think has been attempted here, but to control and prevent the defendant, who claimed to act by its authority, from attempting to do this particular act of administration until he had first qualified himself and given proper and sufficient bond. Was this, then, a proper case for the dissolution of the injunction on the bond of the defendant? We think it was not. If the injunction were properly issued and maintainable at all, a matter not now before us, the-grounds upon which it was sued out were such that its dissolution on the mere bond of the defendant in favor of the plaintiff would work irreparable injury in the sense and meaning of the law not merely to the plaintiff, one of the heirs, but to the other heirs and creditors, and to the succession itself, none of whom, except the plaintiff, are in any manner protected by the bond given in favor of the plaintiff. Again, according to the allegations of the petition, which for the purposes of this case are taken as true, the amount of bond required, $1250, is wholly inadequate to protect against spoliation and waste property to so large an amount as that alleged by the plaintiff.

The appeal was then rightfully taken, not only because it was not a proper case for dissolution on bond but also because the bond required was too small. To take any other view would be to avoid all the provisions of the law in regard to the character and amount of bond, and other prerequisites to the rightful administration of estates. Any one might otherwise first apply for the administration of a succession, and then when restrained from acts of administration might proceed to administer without complying with the law in any respect by simply giving a bond to dissolve the restraining order, the effect of which would be to evade the law and enable him to deal illegally with the estate and its property.

We are asked to "dismiss this appeal for want of citation to the ' appellee. It appears from the entries in the record that, to use its own language, “the court met in chambers on the twelfth of December, 1877, at the courthouse, in the town of Coushatta, that the defendant moved the court to ‘suspend’ the injunction on his giving bond, that it was so ordered, that all the papers and proceedings in the suit were filed in ■ evidence, and immediately following that ‘petition for appeals, suspensive and devolutive, (were) filed in open court,’ and the usual orders thereon granted, all on the same day and at the same time, and that thereupon the court adjourned sine die.” The judge thereupon' signed officially and certified to all of the foregoing facts. The petition for appeal is then given, and then the order of appeal, which ends in these words: “ Done, read, and signed during the chambers trial of said proceeding herein, on this twelfth of December, 1877. A Ben Broughton, Parish Judge of Bed Biver parish, La.”

While the manner of proceeding seems to have been somewhat anomalous, we think it sufficiently appears that all the steps taken, including the appeal, were had contradictorily with each other, and in the presence of both counsel for plaintiff and defendant, and under the peculiar circumstances of this case that the motion to dismiss the appeal for want of citation should be and it is overruled; and on the merits

For the reasons assigned, it is ordered,-adjudged, and decreed that the order dissolving the injunction sued out in this case upon the bond of the defendant be and it is amended, and the injunction reinstated. It is further ordered that the defendant, J. N. Brown, pay the costs of this appeal and of the proceedings in the court below upon his application to release the injunction on bond.