Gates v. Walker

Citations

• 8 La. Ann. 277

Syllabus

<p>Caldwell was appointed curator of the succession of Gates. He filed a tableau which was opposed by Maries, through T. A. Bartlette, attorney at law, Marks claiming to be a creditor as vendor of goods to one Johnson, for whom Gates became surety, as Maries alleged. The evidence was altogether parole. Maries’ claim was rejected, but by consent of counsel a judgment of non-suit was entered. Subsequently, Caldwell absconded, anil Walker applied for the curatorship, through Bao'tlette, was appointed, and obtained judgment against Leefe, Caldwell’s surety. Execution issued against Leefe, and the return showed that before sale of the property seized, the case u was settled by the parties.” During the summer vacation, Walker filed a tableau recognizing Marks’ claim, which, not being opposed, was allowed; but the judgment of homologation was never signed. Almira Gates, the widow of Gates, sued to set aside the homologation, charging collusion between Ma/rlcs and the curator, Walker. By the Cohort, the recognition of Marks’ claim by the curator was collusive. WaZker obtained the curatorship for the sole purpose of obliging Marks, and of enabling him to make his claim. It was an abuse of the forms of legal proceedings for the curator, under the circumstances, to place upon the tableau a claim which had been rejected, after trial before the Court.</p> <p>Where the return of an execution against the surety of a defaulting curator shows that the case was u settled by the parties,” the creditors, in the absense of further explanation, have a right to consider the amount of the execution as having been paid in cash.</p> <p>The wife of the deceased, though she had lived apart from him, was not judicially separated from bed and board, and she had an interest in his estate, at least for the purpose of presenting her claim for the marital portion for adjudication.</p> <p>It seems that a Judge, in whose Court the -mortuaria are pending, mayproprio motu entertain an inquiry into an ab