Bourguinon v. Boudousquie

Martin, J. delivered the opinion of the court. This case was remanded from hence, at May term last, fox a new trial; before it could take place, the defendant died» and his attorney suggested his death, and prayed that the case might be continued till his heirs might come or be brought in, or that it might be transferred to the Court of Probates of the parish, where the succession was opened, to be proceeded in contradictorily with the curator of the estate. The death was admitted, but the court denied the continuance, and the cause was ordered for trial. A bill of exceptions was taken. There was judgment for the plaintiff, and with the consent of the plaintiff, an appeal was taken. The appellee has not made any objection to the manner, in which the appeal is brought up. It appears to us, the court erred. Heretofore, the defendant’s attorney was considered as authorised to continue to defend the cause after his client’s death, but this is one of those rules of practice, which are abrogated by the new code, , , , . . , . ? . _ , . which provides* (art. 120*) for the citation of the heir. We have doubted, whether this case should be remanded to the District Court, or be transferred to the Court of Probates. It is admitted, that the defendant is dead, and suggested, that there is a curator to this estate. As the plaintiff is not bound by his suggestion, we have adopted the first alternative. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; the verdict set aside, and the case remanded, to be proceeded in according to law, the appellee paying costs in this court.