Succession of Carollo

3 Pelt. 339

• Court: Louisiana Court of Appeal
• Decided: March 22, 1920
• Docket: No. 7714
• Status: Published

Opinion

On liotion to Dismiss.

CHAHLtíS F. CLAIBORIIE, JUDGE.

A motion has been made in this Court to dismiss the appeal herein on the two folloMng ¿rounds:

lo that no surety has si.rned the appeal bond; and

So That no citation of appeal was served until July 29th, although the appeal was granted on petition by order dated July 3d, and made returnable on July 28th.

The name of the surety is not mentioned in the body of the bond. The bond is signed by the appellant, the "Succession of Antonio Carollo by F. kanale, Administrator" . "Signed, sealfd, and delivered in the presence of (signature) Cassidy Barrett". IIo other signature appears on the face of the bond. Upon the back of the oond are the following printed words:

"Affidavit of Surety*1

George Untereiner oeing duly sviorn, soys: That he is worth over and above all his debts and obligations Fifty Dollars in assets that can be subjected to levy under execution, and that he resides in the Parish of Orleans.

Sworn to and subscribed before me this 3d day of July, 1919.

"Signed" Geo. J. Untereiner

Charlee V. kacaluso, hot. Pub.

"Affidavit of Principal"

Frank Ifenalc, Administrator of Succession of A. Carollo, being duly sworn, says that he is informed and believes that George J. Untereiner the surety on this bond, is worth over and above his debts and obli« gations in assets that can oe subjected to levy under execution, the amount for which he has hound, himself on this hond.

Sworn to and subscribed before me this 3rd day of July, 1919.

"Signed" F. Hanale

Charles V. Macaluso,

Hot. Pub.

The George J.' Untereiner and Charles V. Itacaluso, mentioned aoove, are both attorneys at law representing the appellant herein.

Section 4 of Act 112 of 1916 provides:

"That no officer of any Court shall accept any bond, unless each surety thereon shall have made oath that he is worth, over and above all his debts and obligations, in assets that can be subjected to levy binder execution the amount for which said surety has bound himself in said bond, and unless the party furnishing such bond shall have made oath that he is informed and believes that each surety on «aid bond is worth, over and above said surety*s debts and obligations, in assets that can be subjected to levy under execution, the amount for which said surety has oound himself in sai*1 bond, provided that the provisions of this Section shall not apoly to Surety Companies authorized under the laws of this State to do business in this State".

It is evident that t‘rte two affidavits above mentioned were ~ade in accordance with the requirements of the above Act, one by the Surety and t-.e other oy the principal. What other purpose could George J. Untereiner have in affixing upon that portion of tr¡e oond reserved for the "Affidavit of Surety", and where Sureties sign, hi» affidavit that he was worth Fifty Dollars, the amount of the oond? In arguing against the motion to dismiss, George J. Untereiner at the c«r of the Court solemnly asrerts that he signed t‘-~e bond as Surety. All that the law requires is the evidence that some one has «igned trie oond as a surety whom the appellee can ?iold on default of the Appellant. Wi* think it appears with sufficient certainty that Untereiner did sc «ign,

In State ex rel. Babin, 13 Ct. App., 260, this Court held that although the party named as surety in the bond did not sign the bond, it would be good as a bond if signed by another party under the signature of the principal.

This ruling was made in accordance with decision# pf the Supreme Court under similar state of facts/in 6 A., 74; 33 A., 1461; 34 A., 539; 35 A., 560; 115 La. 643 other cases quoted in the Babin case. —

In all those cases the bond was maintained upon the ground that it was patent that some one had signed the bond as surety and that no other conclusion could reasonably be reached. —

/ J- Appellant urges that the appellee cannot complain of the Y/ant of timely citation of appeal, because the appellee has come into Court to move to dismiss the appeal on a prior and different ground, thus waiving citation.

In State vs. Montegut, 7 M., 447, the attorney-general prayed the Court not to notice the appeal for two reasons:

lo That the State was not suable,and

2o That the citation of appeal had been served upon him, which was not legal.

The Court said:

"The attorney-general x x x having been served with the citation of appeal, having attended in this Court and prayed a dismissal, without pleading what he now calls an illegal or insufficient service in abatement, this Court is bound to proceed to the examination of the case on its merits".

This opinion was followed in Vallee vs. Hunsberry, 108 La., 137 where the Court said:

"the motion to dismiss sets forth several grounds, the last of which relates to the want of notice, and it has been held that this a counts to a waiver of such notice. State vs. Montegut, 7 M., 448". 21 A., 278; 26 A., 148; See also 9 M., 497; 11 M., 20; 4 N. S., 359; 5 La., 256; 10 R., 140; 20 A., 22; 28 A., 835; 35 A., 127.

The same jurisprudence applies to original citations to bring a defendant into Court.

nV/ant of citatio/i is waived by the flefendant who appears for any other purpose than to plead tlic rant hereof" . 1 L. D. p 112, IV, 61; 134 La., 290; 125 La., 222.

\7e, therefore, conclude th at byr.ahin;; the motions to t'-’o appeal for want of a smyrfcy on e oond^the appellee has waived his ¡lotion to dismiss for rant of auffi-ciant c:ito.f i Pn. chouf"h both “Zounds ■‘'or dismissal wore included ir one an.! the ss .ie notion.

-lotion to dismiss the appeal oeuied.

October 23rd, 1919.

March 22nd, 1920.

CHUIJES P. CLAIBCBHK, JUOH.

This 1* a proceeding by an «apart to tlx hla feea.

ItBk Itanala «as appolntad Administrator ot tMa succession oX Hovembar 29 th, 1918. Q» lnrantory amounted to 48778.01 ooagposad ot

Bmsahold affaots and ottloa tnrnitnra 865.00

liberty Bonda 1000.00

Opan Account 42079.19

ippraisad at 1000.00

Cash In Bank 1918.01

Baal Batata «000.00

total ‡8778.01

On December 20th, 1918. tba Administrator tllad tba following motion:

"On motion ot frank Kanala, s xAfciiaistrator of tbls Succession, x x and on showing to tba Court that Antonio carollo, tba daoadent, was marrlad twice, first to llar gara t Kanala mora than 21 years ago x x and secondly to Rosa Da jean on Karoh 16th, 1918 x x and that jntonio Carollo died on Ootobar «2nd, 1918 x x'x that the earnings of the oommunity ara found In the books of tba decadent x x x that It la naces-aary that an expart accountant be appolntad to audit daaedent’a books and ascertain tba earnings of Antanlo Carollo between tba data of Karoh 16th, 1918 and October 22nd, 1918, reporting aaoh half month’s earning separate and apart from eaoh other, It la ordered that George H. Penn, certified public Accountant be appolntad to audit tbs books of the decedent and report the earnings or profits made by Antonio Oarollo from Karoh 16th,1918 until October 22nd, 19Í8 reporting eaoh half month’s earnings or profits separately to asoartaln the cornealty rights between Antonio Carollo and Bose Deleen, his widow, and be fixed by this Court."

On January 23rd, 1919, the Administrator filed a provisional account; upon that aocount, among the list of liabilities figured the following item:

"Geo. H. Punn Auditing Books 476.00".

This account was homologated by Judgment rendered February 7th, 1919.

On May 29th, 1919, Geo.- H. Penn filed a motion in which he alleged that he had been appointed to audit the hooks of the deceased; that the hooks of the deceased had been placed in his hands on January 29th, 1919; that he had completed his report and had filed a copy of it in Court; that he had expended not less than 151 hours or 18 and 7-8th ddys upon the work, - and that a reasonable charge therefor per day is $15, making $283.12; that the account had beerf filed and homologated without his knowledge; and he prayed that the Administrator show cause why said report should not be homologated, and vdiy he should not be paid $283.12 as a privilege creditor superior to all others.

The Administrator answered this rule by averring that Penn had been appointed expert "after having agreed and contracted with this defendant to audit the books of the decedent for the price and sum of $75;"that the "account was filed, approved, and homologated with the full knowledge of George H. Penn after having been advised of the amountfor which he was placed thereon for services in auditing the books as agreed to by him and informed that he would be paid for his 'services as soon as his work was completed" that: Penn has no right to ask the homologation of his 'report for several reasons; that he should not be paid more than the sum for which he contracted to audit the books; and that the charge of $283.12 is excessive, unreasonable,and out of all proportion to the work done.

The trial judge rendered judgment in favor of Penn for $283.12 for the following reasons:

"There was some conversation between the expert and the Attorney, in which no specific agreement was reached and the expert rendered valuable service, much larger than that contemplated in the conversation, and, in my opinion, is entitled to proper compensation".

The rule was made absolute and Penn had judgment command, ing the Administrator to amend his provisional account and to plac Penn thereon as a privileged and prior creditor for $283.12, and homologating his report.

Prom this judgment the Administrator has appealed,

The testimony is very short. George J. Untereiner, attorney for the Succession, testified:

"IShen this matter came up I was looking after the Succession of Carollo and I told Mr. Penn we would have a set of hooks that we would probably have to be audited, and I asked him what he would charge to do the work, and he said $75.00, and I said "All right, I will get an order of Court and ¡-vet the books; and 1 got an order of Court and had him appointed as expert, and delivered the books to him. x x x I filed the account and told him the account was homologated. I told him of it and said to him, personally, in his office: Mr. Penn, when you are through with your work, your money is there, Now it was uoon that price that he made to ma that I had him appointed by this Court to audit the books and make' a report",

George H. Penn testifies that he had absolutely no knowledge of the account filed or that he had been placed thereon for $75; he denied thathe had ever entered into an agreement with Mr. Untereiner to perform the work for any amount; he says he worked 150 hours or 18 and seven-eighths days of eight hours each, for which he charged $10 &. day. His testimony on cross-examination is as follows:

By Mr. Untereiner:

Q. Mr. Penn, how did you come to be employed in this ease?

A. I met you on the corner of Com ¡on and Carondelet Streot? one doy, and you asked me if I would audit a set of books for an estate, and I told you I would be very glad to have the work.

Q. Vlas anything said about the cost?

A. You asked me what it would cost, and I told you it vas impossible to tell this without looking at the books. You then gave me the impression it was a very small job and would probably take several days, and I told you, then, in that case, I would charge, say $75, or basing my ideas on $25 a day, for three days, which is the usual charge for chat class of work. But I told you. of course, it would be necessary for me to see the job before making that price. You said, then, you would try to get me appointed a* expert, and I thanked you.

Q. Then, you did say it would cost about $75?

A. Based on what you said, that it would take several days' time.

Q. Did I speak to you about ary other set of books?

á. Why, no; Z don't recall it.

4. That was the only set of books I spoke to you about?

A. Yes, sir: you didn* t mention any name, but that was the only time you spoke to me about auditing books.

Q. And you stated it would cost about $75 to audit these books?

A. Based upon your statement to me, it would take two or three days’ timé.

Q. Did I say anything to you about two or three days?

A. You gave me the impression it wae a very small job, and that it would take two or three days.

Q.- You got an impression that it would -

A. You described it, and I thought you eaid it would take two or three days.

Q. Did I say anything about two or three days?

A. That is the impression you gave all the way through.

Q. And you said it would be about $75?

A. Based on what you said, it would take two or three days.

Q. Whan you got the books, did you tell me' at any time it would cost more than' $75?

A. No, sir.

Q, Did,you tell me at any time you couldn't audit those books for that price?

A. I did not.

Q. Did you at any time tell me that you would require extra compensation?

A. I did not, as no compensation was ever named. I never considered I had ever made any price to you.

Q. Did you at any time tell me the cost of auditing those books would be more than $75?

i. I thought you hod ««na* enough and knew the value of work.

Q. Maybe you art right, I haven't got m sense?

A. You forcad tha answer, air.

Q. I ask you again, did you arar tall me you would charge more than $75 for auditing those hooka?

A. I named you a quotation at $25 a day, which ia the customary charge.

Q. Bid you say $25 a day?

A. That is what I based my price on.

Q. Did you tell me it would cost $25 a day?

A. I told you, from what you said, that it was a nail job, it would cost $75, and from that impression you a gave me, 1 expected to gat $25 a day.

On re-examination, ha said:

Q. And you deny most positively you ever made a pries with him?

A. Yes, sir.

Q. Is, the price of $15 a day the usual and customary price for that class of work?

A. It is below the usual price. I have just finished one job of the same character of work, at $25 a day, for another estate.

Both witnesses apee that there was a conversation con» corning the possible charge for auditing the books. The only disagreement between them was that Unterwiner testified it was a flat prioe of $75, while Penn said it would be about $76. To are of opinion that if Penmhad intended to oharge $15 or $25 a day, he should have so informed Untereiner. His statement that it would cost about $75, was certainly not calculated to coosiunMAe that information. It meant that it would cost that much, more or less. But after the books were delivered to Penn, he was then in a position to ascertain whether the work would msount to more than $75; he should then have spoken, and should have in* formed Untereiner thatthe work would cost more, or would eoat at the rate of $15 a day; his silence at that time was equivalent to a confirmation of the probable prioe he had made. He certainly had no contract with Untereiner for $15 a day; the hast ha could claim would be the meaning of his own words, about $75. But thee» is such a distance between $75 and the amount claimed hero, $283.12, that it cannot be presumed that Untereiner would har6 originally consented to it. Penn's statement to Untereinr misled him. To allow Penn* s claim would be to put his employer at his mercy. He could with as much force haya claimed $25 a day for 50 days. There is no evidence that Untereiner was aware of the customary charge made by members of the association of Certified Public Accountants. We are therefore of opinion that even if no contract for $75 is proven, Penn is estopped from claiming a larger amount.

That much of the judgment ordering the homologation of the Auditor's report was also an error as the Auditor hád no interest in having it done.

It is therefore ordered that the judgment appealed from be reversed and annulled at plaintiff s coáfc in both _ courts.

March 22nd, 1920.