Collins v. Pease's Heirs

17 La. 116

• Court: Supreme Court of Louisiana
• Decided: January 15, 1841
• Status: Published

Opinion

Mathews, J.

delivered the opinion of the court.

This is a case in which a curator appointed to the estate of the deceased, as being vacant, caused proceedings to he commenced against the absent heirs, for the recovery of claims which he alleged to hold in his own right. A defensor was appointed to protect the rights of the absentees, who took on himself the trust; and after the form of a defence judgment was rendered by the court below in favor of the plaintiff, from which the real defendants have appealed.

The record shows, in every step of the proceedings taken in the court below, want of skill or inexcusable negligence on the part of the defensor, by consenting to the introduction ‘of improper testimony in favor of the appellee, and thus compromising the true interests of the defendants, in abandoning the just and legal defences of the cause.

We are of opinion, that a person appointed by a court to defend the lights of absentees in a suit against them ought not to he permitted to surrender any lawful means of defence on their part, to the injury of those whom he represents. We think the [¡resent a proper case for the application of the law [118] which authorizes this court to remand causes to he tried de novo, when according to our opinion justice requires such a measure.

It is therefore ordered, &c., that the judgment of the coux-t of px-ohateshe avoided, reversed and annulled; and that the cause be remanded to said court to be there again tried. And it is further ordered that the appellee pay the costs of this appeal.