Chapron v. Chapron

• Decision Date: 01 May 1889
• Docket Number: 10,236
• Citation: 6 So. 810,41 La.Ann. 486
• Court: Louisiana Supreme Court
• Parties: MARIE C. CHAPRON ET AL. v. HENRY CHAPRON ET ALS

6 So. 810

41 La.Ann. 486

MARIE C. CHAPRON ET AL. v. HENRY CHAPRON ET ALS

No. 10,236

Supreme Court of Louisiana

May 1, 1889

APPEAL from the Twenty-sixth District Court, Parish of Jefferson. Besancon, J.

Gurley & Mellen, for Plaintiffs and Appellants.

Rice &amp Armstrong and A. E. Billings, for Defendants and Appellees.

OPINION

WATKINS, J.

This is a direct action instituted by the surviving widow in community, and natural tutrix of the minor heirs of J. P Chapron, deceased, possessing powers of administration against a former administrator and the sureties on his bond for moneys alleged to have been collected for the account of said succession, and never paid to its representatives.

Said administrator is alleged to have been discharged from his trust, at the suit of one of his sureties, for acts of maladministration.

The defendants filed, in the first instance, an exception to the prematurity of the suit, based on the ground that no final account of the administrator's gestion had been filed, and this having been overruled, they filed an answer, pleading the general issue.

After the trial had commenced, and the greater part of the evidence had been introduced, they filed an exception of no cause of action, which seems to have been grounded, also, upon the absence of a final account. At the conclusion of the administration of proof, they filed a plea of res judicata, predicated upon a judgment homologating the account of the administrator.

In effect, defendants pleaded no cause of action, because no final account was ever filed; and, in the alternative they plead res judicata as to the plaintiffs' demands, if the account filed was a final one.

The judgment substantially overrules the plea of res judicata, sustains the exception of no cause of action, and dismisses plaintiffs' suit; and they have appealed.

The simple question for consideration is, whether the administrator had filed a final account of his dealings with the succession he represented.

The following averment is found in plaintiffs' petition, viz:

"That the inventory of the property of said succession, duly approved and homologated by this court, shows, besides immovables, the following property to belong to said succession, viz: $ 5273 15 in the hands of J. J. Fernandez in New Orleans; a note of Agelie Chapron for $ 1375, and a claim against her for $ 200. That all of said property was community property, and petitioner was and is entitled to one-half thereof in full ownership, and to the possession and usufruct of the other half inherited by the said children, as heirs aforesaid. That said Henry Chapron, as administrator, collected said sums * * * aggregating $ 6848 15. That said Chapron has never paid said moneys, nor any part thereof, to said succession, or to petitioner, but, on the contrary, in gross violation of his duties as such administrator, has wrongfully and illegally retained said moneys, and appropriated the same to his own individual use."

The substance of these averments is, that the administrator received, and converted said moneys while in office, and failed to pay over, or account for the same, on his destitution.

The record shows that the administrator, in response to a rule taken by one of his sureties, filed an account of his administration, during the years 1881, 1882, 1883 and 1884. This was accompanied by a memorandum, showing the total amount of succession funds administered upon, but the...