State ex rel. Remendo v. Judge of Second District Court of New Orleans

17 La. Ann. 189

• Court: Supreme Court of Louisiana
• Decided: June 15, 1865
• Status: Published

Opinion

Hyman, C. J.

The relator asks the court to grant a mandamus on the Judge of the Second District Coiu-t of New Orleans, requiring him to order the execution and registry of the nuncupative testament by public act of Pedro Bemendo, deceased, and to deliver letters testamentary to him, as pu’ayed for in his petition to the judge.

Bespondent, in answer, alleges, that the estate of the deceased had been fully administered, and that the property of the succession had been delivered by a judgment of tbe court into the possession of the legal heir, and that the only remedy of the relator would be a direct action to annul said judgment.

What is required of the judge is a mere preliminary proceeding, and not a judgment binding on those who are not parties thereto. 2 An. 726.

It appears, from the will, that relator is an instituted heir, and was appointed executor.

Until ordered to be executed, the will is without effect (C. O. 1637), and relator has no right of action in consequence of the will.

Thus, while the judge announces to relator that his only right is a direct action of nullity, he prevents him from pursuing this right, under the rule, by refusing to order the same to be executed, and thus relator is left without remedy,

It is therefore ordered, that a peremptory mandamus issue in the name of the State of Louisiana, ordering said judge to comply with demand of relator.