Lewis v. Pepin

On Motion to Dismiss. The opinion of the Court was delivered by DeBlanc, J. In July, 1868, Mrs. Bertha Lewis leased certain houses in this city from A. Rochereau & Co., as agents of the heirs of J. E. Pepin, who then resided in Prance. According to the allegations of a petition filed in the Second District Oourt of the parish of Orleans, by the said A. Rochereau & Co., to be recognized as the agents of Mrs. Widow Pepin, in her own name and as natural tutrix of her children, the lessors of plaintiff,, those children were born — one in April, 1852, the other in April, 1855, and became of age, the oldest in 1873, the youngest in 1876. On the 3rd of May, 1870, Mrs. Lewis brought suit to annul the lease made in 1868, and to recover damages which she charges resulted from a failure on the part of her lessors to comply with their contract. Though they and their tutrix, were represented in this city by A. Rochereau & Co., who had been recognized as their agents by the court and by the plaintiff, the tutrix appears to have been cited to defend said [1418] suit “ by posting and through a curator ad hoc”; as to said agents, they were made parties to the instituted action for the sole purpose of enjoining them from negotiating, and compelling them to return the rent notes subscribed by and delivered to them by Mrs. Lewis as lessee. • At the inception of this litigation, there were in court and in this case but two defendants, Mrs. Widow Pepin as tutrix, the firm of A. Boehereau & Co., as holders of the lessee’s notes. The case was tried and judgment rendered against defendant, ■ annulling the lease, and condemning defendants to pay seventeen hundred and fifty dollars and return the rent notes. Prom that judgment a suspensive appeal was prayed for and allowed, on motion of Charles P. Claiborne, of counsel for defendant. The record contains the mention that at the trial Mr. Claiborne appeared for Mr. Bermudez, defendants’ counsel. The bond of appeal is in the name of Widow J. P. Pepin et al., and recites that: “ Whereas, the above bounded Widow J. P. Pepin, tutrix, et al., has this day filed a motion of appeal from a judgment rendered against her, etc. Mrs. Lewis took a rule in the lower court to dismiss this appeal, on three different grounds, only one of which is now urged, and that is that the heirs of Pepin are of age and they have not appealed. To establish that they have attained the age of majority, the only evidence adduced on the trial of the rule is the petition of A. Bochereau & Co., addressed to the Second District Court, and in which the children’s age is mentioned. That rule was discharged by the District Judge, and the motion to dismiss renewed in this Court. The heirs of Pepin were under age when this suit was brought, and it does not appear that, at any time, they were made or made i;hem-selves parties to said suit; and if, as contended, from 1876 neither of them could have been legally represented by their mother and tutrix, because at that date they alone could have stood in judgment, the validity of the decree rendered against them in 1878 would be at least questionable. The documents to which we have been referred do not sustain the assertion that the heirs of Pepin have, since their alleged majority,appeared in court by counsel or otherwise. The defendant and the defendants therein alluded to are the tutrix and her agents, and the cause urged for the dismissal of the appeal might, if it were to prevail, extend to and affect the validity of the judgment appealed from and blot out the result of a protracted litigation. Were the unsworn allegations of the petition of A. Bochereau <fc Co. considered as sufficient evidence of the heirs’s majority, though it is manifest that the ascertaining of their age was absolutely foreign to the object of that petition, where is the evidence that they were ever informed, [1419] either by their tutrix, or by any other, and in any way, that there was pending in one of the courts of a distant State- a suit in which they would have to file an appearance. Was it not incumbent on plaintiff, as soon as she ascertained that those heirs were of age, to have notified them of the institution and pendency of her suit; and can she now, taking advantage of her own laches, claim the dismissal of an appeal allowed to one of the only defendants who were in court when the case begun, when it was tried and when it was decided ? C. P., 120. We think not, and, in the interest of plaintiff and defendants, the motion to dismiss is overruled.