Succession of Mielke

8 La. Ann. 11

• Court: Supreme Court of Louisiana
• Decided: January 15, 1853
• Status: Published

Opinion

Eustis, C.‘J.

The appellant, 3. £. W. Sill, was appointed by the Court of the First District of New Orleans, curator of the succession of Edward C. Miellce, deceased. A certain female slave named Sa/rah Saines, was inventoried as belonging to the succession, and appraised at the sum of five hundred dollars.

At the instance of the appellant a rule was taken on the slave, and on Ghwrles G. Hutchinson, as guardian of Constance Miellce, and in his own right, to show cause why the said slave should not be delivered up to him as the property of the succession.

In this way the appellant sought, it seems, to test the condition of the person claimed as a slave, and the right of possession of the respondent Hutchinson, who excepted to this mode of proceeding.

The District Judge discharged the rule, and from this decision, an appeal is taken.

There is no warrant in the law for the mode of proceeding adopted by the appellant. His remedy is by an action. Baker & Doane, 3 Annual Rep., 434. We have, on some occasions, adjudicated upon matters in litigation in the form of a rule and answer, under the consent of parties, when the form of proceeding would hardly justify it, in order to terminate matters submitted to us. It is obvious, however, that any mode of proceeding which does not carry with it the elements of res judicata, ought not to be encouraged by Courts, and that alone ought to be followed which conforms to the law of actions.

The judgment of the District Court is, therefore, affirmed with costs.