Marchand v. Gracie

Porter J. delivered the opinion of the court. The defendant was executor of the last will and testament of the father of the petitioners, and this action is brought to compel him to render an account. He offered, as an exception to the action, the plea of resjudicata. The Court of Probates sustained it, and the plaintiffs have appealed. The defendant was appointed executor in 1815, and rendered no account until 1828. When he did render it, it wa~ presented to the parish judge, and by him accepted and homologated, without calling in the heirs, or any other per sons of adverse interests, to the party presenting it. Such a proceeding has not the character of• a judgment which enables him, in whose favour it i~ rendered, to plead res judicata. There must be a defendant and plaintiff, as well as judge, to give a decree of a court, that effect ; and in addition there must be an issue expressly joined, or one implied by the law. It is therefore ordered, adjudged and decreed, that the judgment of the Probate Court be annulled, avoided and reversed, that the exception of res judicata be overruled; and that the cause be remanded for further proceedings, the appellee paying costs of appeal.