Gibbs v. Succession of Scott

Louisiana Court of Appeal

Gibbs v. Succession of Scott

265 So. 2d 249, 1972 La. App. LEXIS 6684

CourtLouisiana Court of Appeal

DecidedJuly 5, 1972

DocketNo. 3910

StatusPublished

Cited by4 cases

This text of 265 So. 2d 249 (Gibbs v. Succession of Scott) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gibbs v. Succession of Scott, 265 So. 2d 249, 1972 La. App. LEXIS 6684 (La. Ct. App. 1972).

Pincite

Opinion

FRUGÉ, Judge.

This is a suit by a holder of a promissory note. The defendants are Robert Nix, a maker; and the widow, individually, and as administratrix of the Succession of Mercer Scott, the other maker. Robert Nix was discharged from the suit by a release. The suit was defended on a defense of lack of consideration for the note. From an adverse judgment plaintiff has appealed. Plaintiff has filed two motions for remand. We grant a remand on one of these motions.

Plaintiff-appellant urges that since the heirs of the succession unconditionally accepted the succession before trial they became indispensable parties to the suit. We think that it was a fatal error to [250]*250proceed to a trial without joining or substituting the heirs as defendants. The succession representative appointed by a court of this state is the proper defendant in an action to enforce an obligation of the deceased or of his succession, while the latter is under administration. LSA-C.C.P. Article 734. This article indicates in the last clause that the representative is no longer a proper party defendant when the succession is closed and the representative is discharged. Cf. Davis v. Chapier’s Curator, 4 La. 133 (1832). In order to insure justice and a finality to this litigation, we remand this suit for a joinder of the heirs as defendants and for a new trial.

For the foregoing reasons, the judgment appealed from is annulled, and the case is remanded. The costs of this appeal to be paid by the appellant.

Annulled and remanded.

Free access — add to your briefcase to read the full text and ask questions with AI

FRUGÉ, Judge.

This is a suit by a holder of a promissory note. The defendants are Robert Nix, a maker; and the widow, individually, and as administratrix of the Succession of Mercer Scott, the other maker. Robert Nix was discharged from the suit by a release. The suit was defended on a defense of lack of consideration for the note. From an adverse judgment plaintiff has appealed. Plaintiff has filed two motions for remand. We grant a remand on one of these motions.

Plaintiff-appellant urges that since the heirs of the succession unconditionally accepted the succession before trial they became indispensable parties to the suit. We think that it was a fatal error to [250]*250proceed to a trial without joining or substituting the heirs as defendants. The succession representative appointed by a court of this state is the proper defendant in an action to enforce an obligation of the deceased or of his succession, while the latter is under administration. LSA-C.C.P. Article 734. This article indicates in the last clause that the representative is no longer a proper party defendant when the succession is closed and the representative is discharged. Cf. Davis v. Chapier’s Curator, 4 La. 133 (1832). In order to insure justice and a finality to this litigation, we remand this suit for a joinder of the heirs as defendants and for a new trial.

For the foregoing reasons, the judgment appealed from is annulled, and the case is remanded. The costs of this appeal to be paid by the appellant.

Annulled and remanded.

Cite This Page — Counsel Stack

Bluebook (online)

265 So. 2d 249, 1972 La. App. LEXIS 6684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibbs-v-succession-of-scott-lactapp-1972.

Opinion

Related

Cite This Page — Counsel Stack