Gordon v. Dick

Martin, J., delivered the opinion of the court. The object of this suit is the liquidation and partition of the property of a partnership which has heretofore existed between the parties. Some of the defendants denied the jurisdiction of the Parish Court ; their plea was sustained, and the plaintiffs appealed. The plea was grounded on the allegation of two pf the surviving partners of the firm of N. & J. Dick & Co., that two of their late partners are dead, and their estates administered in the Court of Probates, by the two surviving partners as testamentary executors. The partnership, the property of which is sought to be partitioned, was composed of several individuals and firms. The firm of N. & J. Dick & Co., was one of the latter. The partition is asked in kind or by licilation. The Court of Probates, has, indeed, exclusive jurisdiction of the partition,of successions. Code of Practice, article 924, No. 14; and to decide on all claims for money which are brought against successions. Idem., No. 13. This article [36] of the Code of Practice does not exclude the jurisdiction of the Parish Court in the present case ; for the partition of no succession is claimed, nor is there any money demanded. The Parish Court of New-Orleans has concurrent jurisdiction with the First District Court, in all cases within the limits of said Parish, and which extends to actions for partition of property held in common, even if any or all the parties defendants be minors or persons residing without the limits of the State. But it is contended, that this suit ought to have been brought in the District Court. According to the act of the legislature, approved March 15, 1813, (1 Moreau’s Digest 338, section 1,) the Parish Court of New-Orleans has concurrent jurisdiction with the court of the first judicial district, within the limits of said parish. The act approved February 16, 1825, section 3, gives to the District Court of the first judicial district, “ all suits for the partition of property held in common, notwithstanding any or all of the parties to be made defendants be minors or persons residing without the limits of the State.” This act being posterior to the adoption of the Code Practice, which took place April 12, 1824, modified the article 924, No. 14, of that code just cited, notwithstanding . it/. t it was promulgated afterwards. The Parish Court of New-Orleans having been established as a court of concurrent jurisdiction with the District Court , ......... . . . „ . . for the first judicial district, is not, in our opinion, confined in its jurisdiction to cases cognizable in the District Court, in 1813. The object of the legislature in the creation of the Parish Court of New-Orleans, being to give to the inhabitants of the city and parish the benefit of two courts of concurrent and general jurisdiction, in one of which the inhabitants, whose vernacular tongue is the French language, might find the judge selected to preside therein versed in that language, and in which members of the bar might with more facility, carry on the oral proceedings. Admitting, however, that the Parish Court is restricted to the jurisdiction of the District Court, as it existed in 1813, none of the parties being minors or residing out of the state, it has jurisdiction in the present case without the aid of the act of 1825 : the object of this act being to extend the jurisdiction of the District Court to cases in which minors or absentees were to be made defendants. The article 924, No. 14, of the Code of Practice, above cited, [37] must, in the latter as well as the first part of it, be confined to partitions of successions ; because successions are the peculiar objects of the Court of Probates, which are courts of special and limited jurisdiction, and which cannot be extended by implication to the exclusion of courts of general jurisdiction. The jurisdiction of the Probate Court, as defined in the Code of Practice, article 924, No. 14, is confined exclusively to partitions of successions, which are the peculiar objects of that court. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and reversed ; the exception overruled, and the case remanded for further proceedings according to law : the appellees paying the costs of the appeal.