Gray v. Waddell

33 La. Ann. 1021

• Court: Supreme Court of Louisiana
• Decided: June 15, 1881
• Docket: No. 1011
• Status: Published

Opinions

The opinion of the Court was delivered by

Todd, J.

This case was submitted on briefs at the recent term of this Court at Monroe, by consent of counsel, to be decided at Opelousas.

. The facts connected with the case are briefly as follows :

John Waddell died in the parish of Winn, in the year 1863, leavmg a. widow and two minor daughters, now Mrs. Gray and Mrs. Brantley, the-plaintiffs in this case. The widow was confirmed as testamentary executrix of the deceased,'and tutrix of the minors. She died in 1869, and John E. Gray was appointed administrator of the said succession of John Waddell,, but afterwards resigned, and the defendant, Alfred Waldell, was appointed administrator of the said succession in the year 1871. He caused an inventory to be made of the property, which consisted of lands in the parishes of Winn, Grant and Natchitoches, the aggregate amounting iff value to $10,861 50. He obtained orders for sale of the property, but there-is no evidence of any returns of the sales having been filed. No account, appears to have been rendered by this administrator after his appointment, to the date of this suit against him, which was instituted in November, 1879. The suit was brought by the plaintiffs mentioned, sole-heirs of John Waddell, deceased ; and the object of it was to compel the-rendition of an account, and procure the destitution of the administrator.

The grounds upon which his destitution was claimed was the failure- and neglect of the administrator to render his accounts, and for maladministration. On the same day that the petition was filed, — the 15th November, 1879, — the defendant was ordered to render an account of' his administration.

Personal service was made on him on the 21th of same month and year.

On the 16th of February, 1880, the plaintiffs, suggesting the failure - of the defendant to render his account, in obedience to the order of the court, the.court made another order, requiring the defendant to file his. account within ten days from that date.

On the 17th of the same month, a default was taken against the defendant on the demand for his destitution.

On the 24th of same month, the administrator rendered his account,, which was opposed by the plaintiffs. This opposition seems to have been consolidated with the action to destitute, and came up for trial at-the June term, 1880, of the court, but, by agreement of counsel, was continued, and fixed for trial at the following September term. It was-tried at that term, the defendant appearing at the trial neither personally nor by counsel. From the judgment rendered against him, destituting him of the administratorship and condemning him to pay $10,307,. with interest, he, the defendant, has appealed. There- is a motion to dismiss the appeal, on several grounds, such as defect in the certificate-of the clerk, error as regards the return day in the order of appeal,, and that the transcript was filed too late, — all of which we find untenable ; and the motion is overruled'.