Ingram v. Richardson

The judgment of the court was pronounced by Slidell, J. The plaintiff alleges that, in the year 1842, he obtained judgment against the estate of Richard Winn, represented by Moore and Neal, executors, upon debts contracted by the deceased ; that since the rendition of the judgments the executors have delivered up all the estate of Winn to his widow, now Mrs. Richardson, and her husband Richardson, in their own right and as tutrix and co-tutor of Winn’s minor children. He prays for judgment against the minors in solido, and against the widow in community, for the amount of the judgments above mentioned, and for general relief. There was a judgment for plaintiff in the court below, and tho defendants have appealed. [840] The first appearance of the defendants in the cause was by way of exception. They declined answering to the merits, and prayed to be dismissed, on two grounds: first, that the District Court was wholly without jurisdiction of the suit; and, secondly, the pendency of a suit in the Court of Probates, brought by the plaintiff against the executors, to enforce the payment of the same judgments. The suit in the Court of Probates, to which reference is made in the above exception, was a proceedingin which Ingram prayed for an .order of that court to the executors, commanding them to sell sufficient property of the succession for cash to pay his claim, and to render an account of their administration. In- that suit the executors answered that they had been discharged from their executorship by a decide of the Court of Probates, had rendered an account to the widow and heirs, and in obedience to the decree of the court had surrendered all the property of the succession to them. Upon those issues the Court of Probates dismissed the suit, stating as the ground for its decree that, it appeared, to the satisfaction of the court that the executors had been discharged as such, and had surrendered all the property and effects of the succession to the widow and tutrix. From this d'ecx'ee Ingram appealed, and the appeal was still pending when this suit was brought. The exception of litispendanee is not well taken. The parties, and the object of the actions, are not identical. In the former ease it was a proceeding against the executors, to enforce a sale of assets of the succession to pay the plaintiff’s claims. In the present, the plaintiff seeks a judgment decreeing the personal liability of the widow, and the liability of the beneficiary heirs, by reason of their acceptance of the succession and community, and of their having taken its property into their possession. See C. P. 335. As to the jurisdiction of the District Court, it is too clear to admit of any discussion, that the widow in community, who had taken the property of the succession into her possession, was suable in a court of ordinary jurisdiction; and upon the authority of the case of Saunders v. Taylor, 6 Mart. N. S. 521, the suit could also be "maintained there against the minors represented by their tutrix. We may remark that in the present case this question of jurisdiction is practically a mere question of costs; for although the exception was heard and overruled in 1845, the trial of the cause on the merits took place in 1847, before the District Court as organised under the constitution of 1845, and clothed with plenary jui'isdiction over minors and successions. The exception having been overruled the defendants answered. The answer contains no plea of general denial, but is a special plea of the nullity of the judgments obtained in the Probate Court, upon the following grounds : That no citation ever issued to, or was served upon, either of the executors; that neither of them ever authorised any person to acknowledge, or waive, service of citation; and that neither of them ever entered an appearance, or joined issue, in those suits. The facts material to the decision of the issue thus made are, that Brent Ogden, licensed attorneys and counsellors at law, signed a written acceptance of service and waiver of citation, upon the original petitions of record in those suits. This, would of itself suffice. The 177th article of the Code of Practice authorises an attorney to acknowledge service. It is erroneously argued that by “ attorney” is there intended an attorney in fact. The french text sets all doubt at rest, by using the expression “ avocal.’1 We had occasion in the case of Conrey v. Brenham, 1 An. Rep. 397, to say that, an acceptance of service [841] by the attorney of record of a citation of appeal, will bo presumed to1 bo-authorised by his client, in the absence of contrary proof. We considered the rule as warranted by a consideration of the dignity of the profession, and the necessity, for the convenient administration of justice,- that great confidence should be reposed in members of the bar. It is to be remembered-, too, that what is done by an attorney at law is done under the solemnity of his oath of office; and the allegation that he has violated his professional duly, by acting for a party without authorisation, ought not to be lightly made. In the present case, the plaintiff has not thought proper to rest the matter solely upon the acceptance signed by Brent Ogden, but has offered evidence-which shows that those gontlemen have not been guilty of a breach of professional duty. Mr. Brent, being examined as a witness, says he thinks he spoke to Moore, the executor, and that he authorised him to waive service. That if he had no special authority, he had a general authority to represent the executors in all matters connected with the interests of the estate. The testimony of this witness, and of another, satisfies us also that Mr. Brent was present when the causes were tried, and the judgments taken, in the Court of Probates. Moore, the executor, swears that Brent Sf Ogden, “were fully authorised by him to exercise their own discretion in all legal matters brought either in favor of or against the estatethat he had entire confidence in them; and that whatever was done by them, in the capacity of attorneys, received his sanction, although he does not recollect if he gave them special authority to waive service in these particular cases. This witness also states bis belief that he promised to pay these judgments ; and this statement is corroborated by another witness, who declares that Moore, as executor, often promised to pay the judgments; but begged indulgence until a crop could be made. At his solicitation suits were brought, and judgments obtained, against the parties primarily liable upon the obligations endorsed by Winn, and upon which the judgments against his succession were obtained. Richardson also solicited that execution should be issued against those parties. As to the objection that the judgments were rendered without appearance or issue joined by the executors of Winn, it is entitled to no weight. Judgments by default were duly enterad, and the causes were tried in the presence of the counsel of the executors. If there were any informalities on this score between citation and decree, the decrees cured them. We cannot now look behind the decrees to discover informalities, which, if they existed, should have been examined by appeal. We are clearly of opinion that the grounds of nullity set forth in this answer, are not only untenable, but frivolous. There was an amended answer which, like the first, contains no general denial, but a mere special plea, in which a further ground of nullity is alleged. The plea in substance is, that the note and draft upon which the two judgments were obtained, were merely collaterals, or means of payment of a note of Wright <^- Robert, endorsed by Briggs and by Winn, due iu 1839 ; that the knowledge of this fact rested only with the plaintiffs, after Winn’s death, and was fraudulently concealed from the heirs and representatives of the succession. The evidence on this point is that, when the new note and draft were given to Ingram, the old note, by the agreement of Ingram, Robert, Wright and Winn, was deposited in the hands of Ingram's attorneys, as a collateral security, “not to be giyen up until the draft and note were paid.” A receipt setting forth the [842] amount was given at-the tima■ to Ingrata by his attorneys, nnd-the old note was retainod in their hands as a collateral security, If the parties chose to put the old debt in the new form of a note and draft, and malte the old note a collateral security instead of a principal -obligation, they had a right to do so, and must be bound-by their agreement. The'charge of fraud and malpractice made in this amended answer, is unsupported and unjust. If any one has aright to complain in this litigation it is the plaintiff, who has been struggling for so many years to collect a just debt, and whose efforts -up to the present time have been unavailing. The question -is put by the defendants in argument, whether a judgment rendered -against executors constitutes evidence against, and is binding upon,-the widow in community and heirs. But this question is not raised by the- answer, and cannot be considered. The defence was placed in the answer solely upon the nullity-of the judgments, setting forth the special grounds of nullity. Objection-is-made to the form-of the judgment, being, it is said, an absolute judgment. If it be absolute against the wife for one-half of the debt, it is properly so; for she has-accepted the community and taken it into her possession,to an amountTar exceeding the plaintiff’s claim. As to the minors, we do not consider it absolute. It is against them “ as the children of the said, Richard Winn, deceased.” The whole context of the judgment must be considered ia interpreting it. So interpreting it, its legal effect is a judgment against the minors, to be- satisfied out of- their, patrimonial estate. Judgment affirmed,-