Bourbon v. Castera

8 La. Ann. 383

• Court: Supreme Court of Louisiana
• Decided: December 15, 1853
• Status: Published

Opinions

Buchanan, J.

(Voorhies, J. dissenting.) The plaintiff is appellant from a judgment which dismisses his suit as to the defendants Arthur Fleming and Felix Percy.

A motion to dismiss the appeal is made on the ground that L. Gastera, the principal defendant, and the most interested party in the maintenance and affirmance of the judgment appealed from, has not been made a party to the present appeal.

The appeal was by motion : and the appeal bond is made in favor of Fleming and Percy, their executors, administrators and assigns.

It is necessary, for the purpose of understanding the merits of this application, to state the nature of the suit, and the pleadings in the cause.

This suit has a double object: to annul a nuncupative testament by authentic act for want of a disposing mind and capacity in the testator and of legal formalities; and also to recover damages from the universal legatee, and from the notary and witnesses who drew and subscribed the will, in solido, for illegal actings and doings in the premises.

To the petition, which contained this prayer for cumulative remedies, exceptions were filed, severally, by all the defendants who have been cited, namely, the universal legatee Louis Oastera, the notary Felix Percy, and one of the subscribing witnesses of the will, Arthur Fleming. Each of these parties excepted that there is a misjoinder of actions—that the action for damages is premature-—and that the plaintiff is not the heir at law and next of kin, as he pretends, but an officious intermeddler. In addition to these exceptions, Louis Oastera specially charges and excepts that the plaintiff had made his co-defendants parties defendant herein, for the purpose of depriving him of the testimony of the persons thus illegally made defendants.

All the exceptions came on regularly for trial at the same time in the Court of the first instance, and were tried and submitted for decision together.

The judgment is in the following words : “ The Court having duly considered the exceptions filed by the defendants to plaintiff’s petition, for the reasons assigned in the written opinion, this day delivered and on file, it is ordered, adjudged and decreed, that the exceptions filed herein by Arthur Fleming and Felix Percy be maintained, and that so far as relates to said defendants the suit be dismissed. It is further ordered, that the right of the plaintiff to proceed in the said suit as against the defendant Oastera alone, be maintained.”

It appears to us, that Oastera should have been made a party to the appeal. It is very evident that the dismissal of his co-defendants from the suit, is a judgment which he has the greatest interest in maintaining. He makes it a special ground of exception that he needs the evidence of his co-defendants upon the matters tending to the annulling of the will, which is an issue that concerns himself alone; and that he is in danger of losing the benefit of that evidence, by the cumulation of distinct causes of action and the joinder of distinct liabilities and defendants, which this petition contains.

The judgment'appea-led from must be viewed as much the property of Costera, (Code of Practice, art. 548,) as of Fleming, or of Percy.

Appeal dismissed, with costs.