Payne v. Dejean

32 La. Ann. 888

• Court: Supreme Court of Louisiana
• Decided: July 15, 1880
• Docket: No. 1089
• Status: Published

Opinion

The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs were twice judicially recognized as creditors of the succession of A. R. Hawkins, contradictorily with the defendant herein, in her capacity as administratrix. By judgment homologating the account presented by her, they were to receive as a pro rata of the funds in her hands the sum of two thousand six hundred and twenty-nine dollars and thirty-six cents. From that judgment the administratrix had taken a devolutive appeal, which has just been dismissed. Had it not been so disposed of, being merely devolutive, it could not arrest the execution of plaintiffs’ judgment.

The lower court recognized the claim which the plaintiffs now urge against the administratrix in her individual capacity.

The plaintiffs had three remedies :

First. To compel her, as administratrix, to pay them.

Second. To proceed against her sureties on her official bond on her failure to pay.

Third. To coerce payment out of, her individual property, a right clearly accorded them by law.

They have preferred the last remedy, and are entitled to recover.

C. P. 993,1057; 13 A. 416 ; 18 A. 220 ; L. D. 690, B. No. 4; 23 A. 573.

The plaintiffs and appellees have asked for damages for a frivolous appeal. We do not feel justified to allow any.

It is therefore ordered that the judgment appealed from be affirmed with costs.

Mr. Justice Fenner recuses himself on the ground of affinity.