Elam v. Heirs of Barr

10 La. Ann. 565

• Court: Supreme Court of Louisiana
• Decided: July 15, 1855
• Status: Published

Opinion

Spofford, J.

The heirs of L. W. Flam, instituted this suit of attachment against certain non-resident heirs of A. & Bcwr, who was one of the sureties of Samuel Glenn, deceased, upon his bond as tutor of the plaintiffs.

Certain funds coming to the defendants as heirs of A. S. Barr, were attached, but the attachment was dissolved and the suit dismissed upon exceptions taken in limine litis by the defendants’ counsel.

It is a sufficient reason for affirming the judgment, that at the time of the filing of the exceptions, the plaintiffs had procured no settlement of their account against their tutor contradictorily with him, or with those who represented him after his decease. Section 6th of the Act of March 16th, 1842 (Sess. Acts, p. 802), provides: “ That the Courts of Probate shall have exclusive cognizance of all suits or actions against sureties on the bonds of appeal, and all others which they are bound by law to receive or exact from appellants and administrators, tutors, curators, and testamentary executors generally; and no such suit shall be instituted against the security until the necessary steps have been taken to enforce payment against the principal.”

The first step towards this result would have been the liquidation of their claim against the principal. Having neglected to take that step, or to to show any valid excuse for their failure to do so, their demand against the heirs of the surety was premature, and was properly dismissed upon the exceptions filed.

Judgment affirmed, with costs.