Wiemann v. Mainegra

Citations

• 112 La. 305
• 36 So. 358
• 1904 La. LEXIS 396

Syllabus

<p>ADMINISTBAT0K _ ACTI0N agaiNST SURETIES— JOINDER OE PARTIES — APPEAL — DISMISSAL-EVIDENCE— CARRYING ON DECEDENT’S BUSINESS-RELEASE OE SURETY.</p> <p>1. Where a judgment has been rendered in favor of two persons against an administrator, and execution has issued thereunder and has been returned unsatisfied, the beneficiaries of such judgment may join in an action against the sureties of the administrator, and the action so brought will not be dismissed for an improper joinder of plaintiffs because, on a devolutive appeal subsequently taken it is held that the judgment relied on was unauthorized quoad one of the parties in whose favor it was rendered.</p> <p>2. An unauthorized judgment against the principal, which is reversed on a devolutive appeal, will not support an action, brought pending the delay for appeal, against the sureties on an administrator’s bond.</p> <p>3. In an action against the sureties on an administrator’s bond, a judgment previously obtained against the administrator is admissible in evidence, but it is not conclusive, as against the sureties, with respect either to the fact or the extent of the breach by the administrator of the obligations of the bond.</p> <p>4. The record of a succession, for the faithful administration of which a bond has been given, is good evidence, in a suit against the sureties, as to the manner and result of such administration.</p> <p>5. Where there are minors interested, their consent, with that of the major heirs, is insufficient to authorize the administrator to carry on a commercial business belonging to the succession, and the minors are not estopped to hold him and his sureties liable for the consequences.</p> <p>6. A surety upon an administrator’s bond cannot, by an ex parte judgment, or a judgment rendered contradictorily with the administrator alone, obtain a discharge with respect to a breach of the obligations of the bond which has occurred before the obtention of such judgment.</p> <p>(Syllabus by the Cou