Caillouet v. Franklin

The opinion of the court was delivered by DeBlanc, J. Marie Eveline Benoit died on the 31st of October 1858, and — nine days after her death — her succession was opened and her surviving husband confirmed as the natural tutor of the children born of their marriage. He — as such — rendered an account which was homologated in 1860, and — by the decree of homologation — the share inherited by each of his wards from their mother’s succession, was fixed at $628.33$. From the day he was confirmed as their tutor, his children had, on his property, a legal mortgage, as security for his administration, and the responsibility which resulted therefrom; but no abstract of the inventory of the minors’ property, no document attesting the amount of its appraisement, was recorded prior to the 1st of January 1870, and— from that date and in their own words — “their mortgage became prescribed and lost.” - Old C. 354, 3282, 3283, 3298 — Const, of 1868,. article 123. Defendant — it is alleged — was, in 1868 and 1869 — the clerk of the district and probate courts of the parish of Lafourche, wherein the succession of the plaintiffs’ mother was opened, and they charge that — by his failure to comply with the 11th section of Act No. 95 of 1869, commanding the deposit with the recorder of the abstracts therein mentioned, they have lost the whole of their inheritance. This suit was brought to recover — from said clerk, and as damages— the amount of that inheritance, and he — in bar of plaintiffs’ demand— pleads the prescription of one year. His plea was sustained, and they appealed. That part of the 11th section of the act of 1869 relied on by plaintiffs, reads as follows: “and any failure of the clerks or recorders to perform the service required, shall subject them to any damage that such failure may cause any person, and shall further subject them to a fine [222] of not less than one hundred, nor more than one thousand dollars, for the benefit of the public-school fund, to be recovered by the district attorney or district attorney pro tern:” Considering the terms of that legislative provision, it seems evident that the clerk’s failure amounts, not merely to the violation of a duty as regards exclusively the plaintiffs, but to the violation of a general duty, imposed in the interest of an entire class — minors—and that damages resulting from a failure, which may subject the clerk to a fine of one thousand dollars, can be recovered but on an action ex delicto, which is barred by the prescription of one year. C. C. 3536 (3501). It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.