Twomey v. Papalia
| Decision Date | 06 March 1916 |
| Docket Number | 21815 |
| Citation | 77 So. 479,142 La. 621 |
| Court | Louisiana Supreme Court |
| Parties | TWOMEY v. PAPALIA |
On the Merits, October 29, 1917; Rehearing Denied January 3, 1918
(Syllabus by the Court.)
The question whether the appellant has an interest in the suit being a matter decided in the judgment appealed from, cannot be disposed of or considered on a motion to dismiss the appeal.
If an appellee is not satisfied with the transcript of appeal to be made according to the appellant's instructions to the clerk of the trial court, his remedy is to give further instructions to the clerk, under Act No. 229 of 1910.
A bond for the amount fixed by the district judge will sustain a suspensive appeal from a judgment that does not condemn the appellant to pay a sum of money or to deliver personal property.
Although the maintenance of a rule to show cause why an injunction should not issue ought to dispose of the question whether the plaintiff is entitled to the writ on the face of the pleadings, nevertheless, if the defendant afterwards moves to dissolve the writ on the ground that the petition does not disclose a legal cause or ground for an injunction, the judge has authority to consider the motion, and to dissolve the writ if the petition does not set forth a legal cause or ground for an injunction.
A contract should not be annulled on the ground that one of the contracting parties was insane when the contract was made, if it was made prior to the filing of a suit to interdict him except on the allegation and proof either that he was notoriously insane or that the other party to the contract could not have been deceived as to the state of mind of the insane party.
The right of a creditor whose claim is secured by an authentic act of mortgage, importing confession of judgment and containing the pact de non alienando, to foreclose the mortgage by executory process, after the death of the mortgagor, does not depend upon whether the heirs of the deceased mortgagor accept his succession unconditionally or under benefit of inventory. Hence the widow and heirs of the deceased mortgagor are not entitled to have 10 days' notice in person before the mortgagee can proceed by executory process to foreclose his mortgage.
When a defendant in executory proceedings has died, leaving a widow and minor children, and there has been no appointment nor demand for appointment of an administrator or other succession representative, the plaintiff in the executory proceedings may have a tutor ad hoc appointed to represent the minor heirs, and continue the proceedings against him and the widow as surviving partner in community.
The widow of a deceased mortgagor has no right to prevent a forecloure of the mortgage by injunction on the ground that she is in necessitous circumstances, and, as such, is entitled to $ 1,000 from the succession, in preference to the mortgagee. Her remedy is by way of third opposition.
Theodore Cotonio, of New Orleans, for appellant.
Felix J. Dreyfous and Alfred D. Danziger, both of New Orleans, for appellee.
On Motion to Dismiss Appeal.
O'NIELL, J.
Pasquale Papalia died during the pendency of these executory proceedings against him. His widow in community was served with the notice to pay, and she enjoined the sale of the property on several grounds. On a rule obtained by the plaintiff in the executory proceedings, the writ of injunction was dissolved, and the widow has appealed from the judgment dissolving the injunction.
The plaintiff, appellee, has moved to dismiss the appeal on three grounds. The first is that the widow in community has no interest in the community property as the succession of her deceased husband is insolvent, and that therefore she has no right to this appeal. The question thus presented cannot be considered on a motion to dismiss the appeal, because it is one of the issues to be considered and decided on the appeal. State ex rel. Duffel v. Marks, 30 La.Ann. 70; Baker v. Frellsen, 32 La.Ann. 822; Dardenne v. Schwing, 111 La. 318, 35 So. 583. One of the grounds on which the writ of injunction was obtained was that the widow had not been granted the delay allowed by law for deciding whether she would accept or renounce the succession as surviving partner in community. The writ of injunction was dissolved on the face of the pleadings, and we cannot, on the motion to dismiss the appeal, decide that the succession of Pasquale Papalia is insolvent and that his widow has no interest herein.
The second ground of the motion to dismiss the appeal is that the transcript is incomplete, in that it does not contain the petition for the order of seizure and sale. Our answer to that complaint is that, if the appellee desired to have his petition embodied in the transcript, his remedy was to give instructions to the clerk of the civil district court. Brown v. Staples, 138 La. 602, 70 So. 529; Act No. 229 of 1910.
The third ground on which the appellee moves to dismiss the appeal is that the appeal bond is not sufficient. As the judgment appealed from did not condemn the appellant to pay a sum of money, the law required that the district judge should determine and fix the amount of the appeal bond. The appellant furnished a bond for the sum fixed by the trial judge, and that is all the law required of her. See Levert v. Moore Planting Co., 133 La. 591, 63 So. 198.
The motion to dismiss the appeal is denied.
On the Merits.
The plaintiff, being the holder of a promissory note signed by Pasquale Papalia, secured by an authentic act of mortgage, importing confession of judgment and containing the pact de non alienando, instituted executory proceedings against the mortgaged property of Papalia. Three months before the foreclosure suit was filed, the wife of Papalia sued to have him pronounced insane and interdicted. Nearly five months after the filing of the foreclosure suit, the plaintiff, learning of the interdiction suit, applied for and obtained the appointment of an administrator pro tempore in the interdiction proceedings, intending to have notice of the executory proceedings and a copy of the demand for payment served upon him. The plaintiff in the interdiction suit had not asked that an administrator pro tempore be appointed.
Soon after, perhaps the next day after, the administrator pro tempore was appointed, and before service was made on him, Papalia died, leaving a widow and two minor children, issue of their marriage. The widow did not cause the succession to be opened, nor ask that an administrator be appointed, nor qualify as tutrix of her minor children. The plaintiff in the executory proceedings, therefore, caused notice of the proceedings and a copy of the demand for payment to be served upon the widow, individually and as surviving partner in community, the mortgaged property being community property, of which the widow owned one half and the minor children inherited the other half. At the same time, the plaintiff in the executory proceedings applied for and obtained the appointment of an attorney at law as special tutor and curator ad hoc of the minor children, and had notice of the executory proceedings and a copy of the demand for payment also served upon him.
The widow, in response to the notice served upon her, filed a petition in the executory proceedings, praying for a writ of injunction to prevent the sale of the mortgaged property, on the following grounds, viz.:
First. That the executory proceedings were null because Papalia was insane, and a suit for his interdiction was pending when the executory proceedings were filed.
Second. That Papalia was of unsound mind when he contracted the alleged debt and gave the mortgage to Twomey.
Third. That petitioner was not liable for a debt of her husband; that she had not accepted the community; and that the delays for deliberating, within which she might renounce the community or accept it under benefit of inventory, had not expired.
Fourth. That there was no administrator or other...
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...and other fraudulent conduct by persons dealing with them.' The late Chief Justice O'Niell stated in the case of Twomey v. Papalia, 142 La. 622, 77 So. 479, 481: 'A contract cannot be annulled on the ground that one of the contracting parties was insane, if the contract was made prior to th......
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