Wells v. Roach

10 La. Ann. 543

• Court: Supreme Court of Louisiana
• Decided: July 15, 1855
• Status: Published

Opinion

Spoitokd, J.

Bannister Wells removing with his negroes from Mississippi to the West, died at the house of J. W. Bardwiclc, in the parish of Caddo, early in 1849.

Eao'dwiclc procured the appointment of curator to his succession, and administered it for upwards of two years as a vacant succession. F. R. Roach and Alfred Emris, (the latter herein represented by Mrs. Watson,) were sureties on his bond as curator.

The present plaintiff, Mary Wells, was recognized as the instituted heir of Bannister Wells, her husband, who had voluntarily separated from her in Mississippi. After many delays she succeeded in getting possession of the property left in the hands of Em’dwick. He filed the final account of his administration, which embraced very large charges, some of them for medical services rendered by himself to the slaves belonging to the succession. Mary Wells opposed the account, denying the correctness of many of the charges, and alleging that Bardwiclc was liable for the hire of the slaves which he had employed in his own service during his curatorship, without accounting in full for their wages.

The trial of this opposition resulted in a judgment in the District Court which liquidated the balance due to Mary Wells by J. W. Bardwiclc, upon a final settloment of his account of administration, at the sum of $1080 92, for which judgment was rendered in her favor against him with five per cent, interest from the 14th April, 1852, the date of the judgment.

Bardwiclc appealed to the Supreme Court from the judgment, and F. R. Roach became his surety on a suspensive appeal bond.

On the 18th April, 1858, the judgment was finally affirmed by the Supreme Court, with costs, and J. W. Bardwiclc having died pending the appeal, it was ordered that the decree be binding upon his succession, represented by David J. Boolcs, curator.

On the 80th December, 1853, Mary Wells took a rule on Boolcs, curator of Bardwiclc's succession, to show cause why this judgment should not be paid immediately.

Upon a hearing Boolcs proved that all the property of Bardwiclc's succession had been sold, and would not realize for one or two years more than enough to pay the privileged debts, and then would not pay more than from twenty-five to forty cents on the dollar.

Whereupon the rule was discharged.

Mary Wells then instituted this suit against F. R. Roach, surety on the appeal bond in the suit above alluded to, and against F. R. Roach and the representative of Alfred Emris, sureties on the official bond of Eardwich, as curator of the succession of B. Wells, to recover of them, in solido, the amount of her final judgment against Bardwiclc.

There was judgment against Roach as surety on the appeal bond, and • against Roach and Mrs. Watson jointly, as securities on the curator’s bond.

The defendants have appealed.

The sole matter pleaded in defence of the action, is the statute of March 16, 1842, § 6, (Session Acts p. 302,) which provided : “ That the Courts of Probate shall have exclusive cognizance of all suits or actions against sureties on the bonds of appeal, and all others which they are bound by law to receive or exact from appellants and administrators, tutors, curators and testamentary executors generally; and no such suit shall be instituted against the security, until the necessary steps have been taken to enforce payment against the principal.”

Thus, the only question presented in the pleadings in the brief of counsel is whether “the necessary steps have been taken by the plaintiff to enforce the payment of her judgment against the estate of Hardwick, the former curator of the succession of Bannister Wells."

Erom an inspection of' the proceedings and the evidence it is conclusively shown, as before stated, that a judgment for a liquidated .amount, viz: that claimed in the petition, was obtained against Hardwick, and that while an appeal was pending from said judgment Hardwick died. The judgment having-been affirmed against his representatives, the plaintiff, in our opinion did take all necessary steps to enforce payment against the principal, by taking a rule upon the representatives of Hardwick's succession, to show cause why the judgment should not be paid. The action of the Court upon this proceeding, in our opinion, rendered any other “stop” unnecessary in order to enable the plaintiff to proceed at once against the sureties of Hardwick, both on his bond as curator and appellant. The rule was dismissed, it having been shown that all the property of Hardwick's estate had been sold, and that not more than an amount sufficient to pay the privileged debts would be realized for one or two years, and then only from twenty-five to forty cents on the dollar.

The case comes cleárly within the scope and application of the principle laid down in Alley v. Hawthorne, 1st An. p. 126. Adopting the language of this decision: “ Where an execution cannot be lawfully taken out against the property of the debtor, (as in the case at bar,) where his succession is under administration, the law will not turn the judgment creditor over to a labyrinth of creditors, to await the tardy liquidation of a litigated or insolvent succession.” He has done all that he can do, and all that he is bound to do, unless we hold that he can have no recourse against the defendant until the insolvent estate of Hardwick has been finally liquidated. This would not in our opinion be a reasonable construction of the law regulating the right and liabilities of this class of sureties.

It is ordered that the judgment of the District Court be affirmed with costs, and that the decree be also binding upon the succession of F. B. Roach, herein represented by Benjamin L. Hodcje, the executor of the deceased.