Broussard v. Broussard

Morphy, J.

delivered the opinion of the court.

The plaintiff claims from his father and natural tutor- $3100, for one half of the community property inventoried at the death of his mother, Marguerite Bonin, in 1831. He alleges, that in due course of law the whole property, which became common between the defendant and himself, as the sole heir and legal representative of his mother, was adjudicated to the former at the appraisement price of the inventory ; that by law the property, thus adjudicated to his father, remained specially mortgaged to secure the punctual payment of his hereditary portion in the estate of his mother, and that said mortgage ira-ports a confession of judgment, which entitles him to an im-me¿|jaje or¿er 0f seizure and sale of the property mortgaged, which he prays may he issued. By a supplemental petition the plaintiff represents, that his father has also received, as his natural tutor, $295 46 from his grandmother’s estate, and a further sum of $350 10 from the estate of his grandfather, Baron Bonin. He prays judgment for the sum of $2100, claimed in his original petition, with legal interest from the 13th of June, 1822, and for the further sum of $645 56, received the defendant as aforesaid. On the very day, that this last Pet*t*on was died, we find the judge rendering a judgment in conformity with its prayer. This judgment mentions, that it is rendered by consent of parties. On the same day, the record shows a service of this judgtnent made on the defendant, and the sheriff’s return of such service. The defendant appealed, rjr

whichstatfsthat by'^comenf1'of parties; especi-does not appear* was ever**cited or made a party to the suit, is illegal.

cannot^receive ;n a which the judge a quo states his* opinion to ven? AtTadmis-facts°cannotrbe proved by any mention in the judge’s opinion, siona were made.

From the proceedings exhibited in this record, it does not appear, that the defendant has ever been a party to them. He never appeared in court by filing any plea, exception or answer, nor does he appear to have been cited. No judgment can be rendered without citation to the party, and without a contestatio litis, resulting either from an answer, or from a judgment by default. We have often held, that this court cannot receive as ProPer evidence for their consideration any thing which the judge « gwo states in his judgment to have been proven. An admission of material facts could not be proved by any men- . . . . , ,. - . - . ., , _ tion m the judge s opinion oí its having been made. And what is a consent-, that a judgment be rendered, but an admis-s*on the ^acts oeoessmy to make out the plaintiff’s case ? This consent, which is the basis of the judgment, must appear . , before us by proof, independent of the judgment itself, when the party prays for relief from this court; otherwise the bare mention, of such consent in the opinion of the judge of the first instance would conclude the suitors before him, and deprive them of the privilege of litigating their rights in this tribunal ; as no appeal lies from a judgment rendered by consent or on the confession of á party. Under this view of the case, it becomes unnecessary to notice the other errors assi apparent on the face of the record. _ gned, as

It is therefore ordered, that the judgment of the Court of Probates, Of the parish of St. Martin, be annulled, avoided and A # reversed, and that the case be remanded to said court, to be proceeded in according to law, the plaintiff and appellee paying the costs Of this appeal.