Succession of Martin v. Succession of Hoggatt

The opinion of the Court was delivered by Roché, J. Before his death, Thomas J. Martin obtained in this Court a moneyed judgment against the defendant succession, in solido, with another defendant, on a lease-bond signed by Philip Hoggatt as surety. On the 15th of May, 1882, he proceeded by rule in the district court for the enforcement of his judgment and for a sale of succession property j he was met by an answer setting up the absolute nullity of his judgment. The plea was maintained and his rule was discharged by a judgment rendered on January 12, 1883. On the same day, through his counsel by motion in open court, he obtained an order of appeal from said judgment. On the next day, January 13, he died in Louisville, Kentucky, the place of his residence. On the 19th of the same month, a judgment was rendered rescinding the order of appeal of the 12th, on the ground of his alleged acquiescence in the judgment appealed from. An appeal under a bond executed by his attorney was subsequently brought up to this Court, and was stricken from our docket for the reason that he was dead and his succession unrepresented. 35 Ann. 386. A. W. Crandell, in his capacity of administrator of the subsequently appointed succession, then applied for an 'appeal from the two judgments, of January 12th and of January 19th, but obtained an order from the latter only. That appeal resulted in the reversal of the judgment of January 19th, which purported to rescind the order of appeal of January 12th, obtained for Martin the day before his death. 36 Ann. 337, On the 2d of October, 1884, A. W. Crandell, administrator, obtained an order of appeal from the judgment of January 12, 1883, on a petition, in which he recited substantially the foregoing facts, and in which he averred that the appeal taken for Martin before his death had lapsed, but that as a non-resident the latter was legally entitled to au appeal, if applied for within two years of the rendition of the judgment. The grouuds of the motion to dismiss that appeal are: [342] 1. Want of capacity of Crandell to prosecute the appeal, on account of his failure to produce the evidence of his appointment and of his qualification. 2. The prescription of one year in bar of the right of the succession to appeal. The first ground of the motion is easily met by the suggestion that it is urged too late and not in the proper tribunal. It should have been urged in the district court where Crandell obtained his first order of appeal, of January 14, 1884. The remedy was by a motion to rescind the order of appeal, on the ground now urged here. It would have presented an issue under which evidence Could have been produced and discussed between parties. But in the order of appeal of January 14, 1884, Crandell was specially recognized by the district court as the administrator of the Martin succession, and formally authorized to prosecute the suit of Martin vs. Succession of Hoggatt. Hence we conclude that the objection comes too late, and is frivolous. The second ground involves two propositions; the first, that the delay for appealing granted by Art, 593, Code of Practice, to non-residents, applies only when they are defendants. The best answer to that argument is the text of the article ; it makes no distinction between one class of non-residents and another, and the courts can make none. The argument, showing the reasons for the distinction, might be proper on a proposed amendment to the article; it can have no force in a court of justice. Beaird vs. Russ. 34 Ann. 315, The second propositon rests on the argument that the succession of Thomas J. Martin, as represented by Crandell, is a home succession, and hence it cannot claim the’rights of non-residents under Article 593 of our Code'of Practice. . If Martin was yet alive, his right to appeal within the two years could not be questioned. Are we to hold that because his estate has been admitted to administration in the parish of Madison, his succession has been stripped of any rights which he could claim if living ? The mere statement of the proposition is its best ^refutation. There is no more reason in the contention that Crandell is, in the language of the article, “the party claiming the same,” and that as a resident he cannot invoke the additional delay for appealing. The application is made in his'representative capacity, and it is in fact and in law the appeal taken by the succession of Thomas J. Martin, to which his right to the’ delay of two years has been transmitted. Personally, Crandell [343] could not appeal in liis own right; in these proceedings he is the mere instrument of the succession. The identical position now occupied by the defendant was assumed by the appellee in the case of Krauster vs. Bank, 12 Rob. 456. He was answered as follows: “The petition of appeal, it is true, is in the name of the attorney appointed to represent the bank, but he alleges that the error in the judgment is to the prejudice of defendants. We do not look so much to the form as to the substance, and no one can hesitate in saying that' the appeal is that of the bank. The attorney as such has no such interest known to us as will authorize him to appeal separately from those he represents.” If Martin was yet alive, and represented in Madison by an attorney in fact of that residence, it is evident that the appeal taken by the attorney in fact would be Martin’s—just as the present appeal taken by Crandell, who is the agent of the succession of Martin, with its domicile in Louisville, Kentucky, is the appeal of the succession. The motion to dismiss is, therefore, overruled.