Heirs of Gague v. Gague , 3 Mart. (N.S.) 172 ( 1824 )

Martin, J.

delivered the opinin of the court. The plaintiffs demand the par t estate of their father, in the hands of his widow and the other defendants. The district court thought it had no jurisdiction of the case, and non-suit- ed the plaintiffs.

We think iterred. The plaintiffs alleged they are common in goods with the widow, the community which subsisted between their ancestor, and is still subsisting between them and her, and as such they demand their part of the general property. The partition may be sued in the district court. The Civil Code, 176, art. 133, in giving jurisdiction to the court of probates, does not give it exclusively. Turner vs. Croft, vol. 1. 370, and Broussard vs. Bernard & al. decided last month at Opelousas ante 37. at Opelousas ante 37.

The case not having been passed upon the merits cannot be examined here.

It is therefore ordered,adjudged and decreed that the judgment of the district court be annulled, avoided and reversed, and the Heirs may sue the case remanded, with directions to the judge to proceed therein according to law. The costs in this case to be borne by the defendants and appellees.

West'n District, Sept. 1824. Rost for the plaintiffs, Bullard & Morris for the defendants.