Pargoud v. Breard

The judgment of the court was pronounced by Rost., J. This is a suit against the administratrix of the succession of Breard, upon an obligation subscribed by him to the plaintiff. William Maconchy, representing himself to be the agent of the administratrix, acknowledged service of the petition. He then failed to answer, and a judgment by default was taken against the succession, and, after the legal delay, made final for the balance claimed and interest. When the administratrix was apprized of this proceeding she took the present appeal. The certificate of the clerk is not sufficient to enable us to examine the case on its merits; but the appellant contends that, she cannot be prejudiced by the this informality. Her counsel urges that this was a probate proceeding, in which, under article 1042 of the Code of Practice, it was necessary to take the testimony of the witnesses in writing, and to make and file in the record a list of all the documents produced by the parties ; and that this not having been done, she is entitled to have the case remanded, under the authority of Tompkins & Wife v. Benjamin, Tutor, 16 La. 197; Graham's Heirs v. Graham's Administrator, 16 La. 201; Desormes v. Desormes' Syndic, 17 La. 115; and the Succession of Reeves, 3 An. 554. We are of opinion that this ground of defence must be sustained. The prosecution of a claim for money against a succession is exclusively a probate proceeding. C. P. 924, §13. It is urged in behalf of the plaintiff that, this claim had been acknowledged by the administratrix; but this is denied, and the action of the plaintiff rests upon the presumption that it had not been acknowledged. It is ordered that the judgment in this case be reversed, and the case remanded for further proceedings according to law, with directions to the District Judge to allow the defendant to plead to the merits. It is further ordered that, the costs of this appeal be paid by the plaintiff and appellee.