Bivona v. Jules , 6 Pelt. 122 ( 1922 )

Dinkelspiel; J.

The issues presented in this osse have been before this Court twice before the present appeal. The substance of the allegations of the petition are that plaintiff, a creditor of the deceased, had departed this life and that a brother .residing in Italy had accepted the Succession and taken possession of its assets both here and in the Kingdom of Italy, which constituted life insurance policy amounting to about 1500.00, and now the present issues are khs solely whether or not plaintiff can take the testimony of the defendant and another witness residing in the Kingdom of Italty, in an end deavor to enforce the .collection of his claim, and it is the sole question presented in this reoord.

Under a proper affidavit to take testimony of Jules Fontana, together with another witnesses, both residing in Italy, and under a commission issued by the Civil District Court, reading, "To any Ambassador, Minister, Charge d'Affairs, Consul, Vice Consul, or Consular Agent, or any other representative of the United States, residing in Ite.ly and authorized to administer oaths", oounsel for Jules Fontana objected and insists upon his objection to the form, manner and method of issuing these interrogatories, and to the service thereof, and with the interrogatories and the commission before him, he propounded oross-interrogatories to the parties sort to testify in this case.

This matter was tried by the Civil District Court and without entering into the proceedings there, the objection to issuanoe of the commission was maintained, the Court holding:

"The facts are that this matter was submitted to the Court and taken under advisement in order to afford counsel opportunity for filing briefs; counsel for the present defendant filed his brief, but counsel for the plaintiff never filed a brief and was requested several times by the Court to file a brief, but stated that the matter was ih Court of Appeal and. it was not neoessary. The Court remembers at this time very well the arguments advanced at the time the matter for disposition was before the Court, and now disposes of the matter by sustaining the present objection and refusing to allow the commission", and from that judgment there is this appeal.

The Civil Code, Art. 1013. "The effeot of the simple acceptance of the Succession, whether express or tacit, is suoh, that when made by an heir of age, it binds him to the payment of all debts of the succession, not only out -of the effects whioh have fallen- to him from the succession, but even personally, • and out of his own property, as if he had himself oontrao'ted the debts or as if he was the deceased himself; unless, before acting as heir, he made a true and faithful inventory of the effeots of the succession, as here above established, or has taken the benefit treated of hereafter,"

This reoord alleges that Jules Fontana,-brother of •the deoeased'had aooepted the sucoéssion, and hence being an heir of age, if that be a fact, in aooordahoe with our Civil Code he is bound for the payment of all debts of the succession, not only that but he is bound personally even out of his own property, unless as the Code provides, he has made a true on d faithful txxxxxrtiq; inventory of the effeots of the succession, and has tácen ¿he benefit ax thereof, -There was no Inventory of this suooession taken;3he heir took possession of the effects as alleged,both here and in Italy, and if that be under bo,-then/our law hx there oan-be no question as to his liability for debts due by the suooession.

It has been’urged that Article 4t3?¥ 437* C. P, reading: "Commissions to examine witnesses out of the State may be dlreoted to any Judge, Justioe of the Peaoe, Magistrate or any other person residing at the plaoe where suoh'witnesses live, or to any commissioner appointed by the Governor of the State"; and it is urged both in brief and in the argument of the defendant's .counsel in this case that the commission in question not being, direoted as required by the Code of Prqotioe, fails, and the judge so held.

We are compelled under the circumstances to differ, with the Judge in his opinion ss to the meaning of the Artiole in question, together with our Civil Code, the Artiole of whioh was heretofore quoted, and to express the opinion, "or eay other person residing st the place where such witnesses live" means any proper offioer who has the authority to aot.

The authorities quoted, after an examination, do not in our opinion maintain the /^¡¡Sesfoaieer advanced by counself for defendant. We are satisfied th»t the provisions of the Code of Praotioe and the Civil Code apply in this case, and hence judgment of the Court a qjia, in our opinion must be amended.

For the reasons assigned, it is ordered, adjudged and deoreed that the judgment of the Court a qua, annulling and rejeoting plaintiff's appliction for $ commission to tahe testimony of witnesses in Italy pertinent to the issu.-o in this case, together with the cross interrogatories applied for by the in this oese, he and is hereby annulled, and avoidedyyand it is further ^ifdered, that the commission in this case as applied fox, together with the cross inter-led ai rogatories, be issued, and the order refusing be annu tbe^oost of defendant^

-Judgment reversed and amended-