Dussumier v. Coiron

2 Rob. 368

• Court: Supreme Court of Louisiana
• Decided: June 15, 1842
• Status: Published

Opinion

Morphy, J.

The defendant, who is at the same time universal legatee and testamentary executrix of the late widow Cotteret, has been sued in both capacities, and has been decreed to pay to the petitioner a sum of $400, for services rendered to the deceased. From this judgment she has appealed, and prays for its reversal on the ground, among others, that her husband, Francois Ste. Marie Coiron, has not been made a party to the suit, and that she has not been aided and assisted by him in making her defence. The petition does not pray that the husband be cited to defend the suit with his wife, the defendant, nor did he join in the answer she made to it. The appellee’s counsel has suggested that, perhaps, no authorization of the husband is necessary, where the wife sues or is sued in the capacity of a testamentary executrix. Even if any doubt could exist as to the necessity of the marital authorization in such a case, it would be of no avail here, as the defendant is also sued, in her individual capacity, as universal legatee. But the law, we apprehend, makes no distinction. The Civil Code, art. 123, provides, that “ the wife cannot appear in court without the authority of her husband, although she may be a public merchant, or possess her property separate from her husband.”

Castera, for the plaintiff. Ducros, for the appellant.

The only exception, we know of, to this general rule, is to be found in article 125 of the Civil Code, and in article 106 of the Code of Practice, to wit, when there exists between the husband and wife a separation from bed and board. Article 118 of the Code of Practice provides, that “ when one intends to sue a married woman for a cause of action relative to her own separate interest, the suit must be brought both against her and her husband.” The office of testamentary executrix cannot be accepted by a married woman, without the consent of her husband. Civ. Code, art. 1657. If, in the execution of this trust, it becomes necessary for her to appear in court, either as plaintiff or as defendant, she must, we think, under the provisions of our law, be authorized and assisted by her husband ; and all proceedings had and conducted without such authorization, are null and void.

It is therefore ordered, that the judgment'of the Court of Probates be avoided and reversed, and that this case be remanded for further proceedings ; the plaintiff and appellee paying the costs of' this appeal.