Opinion
No. 5550.
April 23, 1962. Rehearing Denied June 15, 1962.
Proceeding against decedent's estate. The Twenty-first Judicial District Court, Parish of Livingston, Horace R. Reid, J., rendered a judgment from which a purported executrix appealed. The Court of Appeal, Herget, J., held that purported executrix's appeal would be remanded to obtain record evidence of her appointment and qualification, where record did not show that she was party and letters of administration were not attached to her petition for appeal.
Remanded.
Pittman Matheny by Iddo Pittman, Jr., Hammond, for appellant.
L.B. Ponder, Jr., and Carver T. Blount, Amite, for appellee.
Before ELLIS, HERGET and MILLER, JJ.
Plaintiff instituted executory proceedings against the Estate of Joseph E. Bollinger (the heirs and surviving spouse) contradictorily with a curator ad hoc appointed by the trial Court upon his allegation "* * * that an order of executory process enter accordingly with appointment of an attorney to represent them as the mortgagor is dead, no representative or judgment of possession and in accordance with Section 2 of article 2674 of La. Code of civil procedure."
The property was sold at public auction and was bought in by Plaintiff. After the sale of the property the Plaintiff instituted a Third Opposition in the proceeding contradictorily with the attorney appointed in accordance with the above referred to article of LSA-C.C.P. seeking payment of other indebtedness allegedly owed to him by the succession and judgment was rendered on said Third Opposition in favor of Plaintiff for the amounts sought and ordering the Sheriff of Livingston Parish, Louisiana to distribute the funds accordingly. Subsequent to said judgment an appeal was granted to this Court on the petition of Dorothy Jane Watts Bollinger who alleged that she was the duly qualified administratrix of the Succession of Joseph E. Bollinger.
In this Court appellee has filed an exception of no cause or right of action predicated on the assertion that there is nothing in the record to show that appellant is a party in interest, either in a representative capacity or in an individual capacity. Though the petition for appeal was granted on the representation of appellant that she was the duly qualified administratrix of the Succession of Joseph E. Bollinger, there is not attached to the petition Letters of Administration to appellant.
[1, 2] Inasmuch as this Court cannot take evidence on an issue, under the provisions of LSA-C.C.P. Article 2164 this matter is remanded to the Trial Court solely for the purpose of permitting appellant within ten (10) days from this judgment in a proceeding contradictorily with appellee to place in the record evidence of her appointment and qualification as administratrix of the Succession of Joseph E. Bollinger and upon the furnishing of such evidence same is to be transmitted to this Court within three (3) days thereafter, this Court retaining jurisdiction of the appeal on the present Order of Appeal and bond furnished thereon.
Remanded.