Opinion
No. 40713. No. 41602. No. 41666.
February 14, 1955. Rehearing Denied March 21, 1955.
APPEAL FROM 19TH JUDICIAL DISTRICT COURT, DIVISION "C", PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, HONORABLE JESS JOHNSON, J.
Wilbur D. Atkins, Baton Rouge, for appellant.
Durrett Hardin, Baton Rouge, for appellee.
Opinion No. 2 of Consolidated Cases
Hattie Gaines Cain and Hettie Gaines Smith, the appellants, prosecute this appeal from a judgment of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, dated April 7, 1953, which set aside its former ex parte judgment of February 16, 1951 in favor of appellants.
The judgment of February 16, 1951 recognized Hattie Gaines, Widow of Willie Cain, and Hettie Gaines, Wife of Abe Smith, to be the children and sole heirs of their deceased mother, Delphine Jackson. By the judgment of April 7, 1953, Henry Gaines, appellants' brother, was recognized as a child and heir of Deiphine Jackson, along with Hattie Gaines Cain and Hettie Gaines Smith.
Appellants base their appeal on two grounds: —
1. That the heirs of Henry Gaines are not entitled to any part of the estate of Delphine Jackson, because of illegitimacy; and
2. That Henry Gaines is now deceased and it was erroneous to name him as an heir of Delphine Jackson.
The property involved is an undivided one-half interest in a certain parcel of land located in the Parish of East Baton Rouge, which formed a part of the community existing between James Jackson and Delphine Jackson, who were married in 1890. There was no issue from this marriage, but both had issues from former marriages.
James Jackson died on October 10, 1912, and, of course, his children have the right to appear and claim their part of his community estate in accordance with the law.
Delphine Jackson died on November 11, 1914. She had been previously married to Elias Gaines, and three children were born of this marriage, namely:
1. Henry Gaines, who survived his mother but is now deceased;
2. Hattie Gaines, now Widow of Willie Cain; and
3. Hettie Gaines, now Wife of Abe Smith.
The appellees, Elizabeth Gaines, Wife of Albert Ross, Mary Helton, Wife of Albert Cunningham, and John Dennis Helton, filed a petition in the Nineteenth Judicial District Court for the Parish of East Baton Rouge. They prayed to have the ex parte judgment of February 16, 1951, which recognized Hattie Gaines Cain and Hettie Gaines Smith to be the sole heirs of Delphine Jackson, set aside, and petitioned to be permitted to share in the estate of Delphine Jackson. They based their claim on a judgment of the Civil District Court for the Parish of Orleans, which recognized them to be the legal and sole heirs of Henry Gaines, the deceased son of Delphine Jackson. That judgment has this day been affirmed by this Court in the matter entitled, Succession of Gaines, 227 La. 318, 79 So.2d 322.
On the proceedings taken by appellees in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, the judge declined to hear evidence relating to the judgment of the Civil District Court for the Parish of Orleans. We feel that his position was well taken, because:
First: The only power recognized in law to set aside the judgment of the, Civil District Court for the Parish of Orleans, is an action of nullity taken in his court on the ground of fraud and ill-practices or other reasons for nullity; and
Second: The power to set that judgment aside must be by appeal to this Court, and we have, this day affirmed that judgment.
There is, therefore, no merit, in the first, contention, and as the legal and sole heirs of Henry Gaines the appellees are entitled to participate in the, estate of Delphine Jackson.
We must consider the second ground urged by appellants. In rendering judgment in favor of a dead person, Henry Gaines, the court was merely protecting itself because of the pending appeal of the Succession of Gaines, 227 La. 318, 79 So.2d 322.
Appellees, the legal and sole heirs of Henry Gaines a deceased son of Delphine Jackson, have been parties to all of these proceedings and have been represented. We, therefore, feel that the judgment of the trial court should be amended so as to recognize Elizabeth Gaines Ross, Mary Helton Cunningham and John Dennis Helton, heirs of Henry Gaines, to be heirs of Delphine Jackson.
For the reasons assigned, the judgment of the trial court is now amended to read that Elizabeth Gaines Ross, Mary Helton Cunningham, John Dennis Helton, Hattie Gaines Cain and Hettie Gaines Smith are the sole heirs of the decedent, Delphine Jackson, and that as such they be sent and put in possession of decedent's estate in the proportion of their undivided interest to be fixed by law.
Judgment amended and affirmed. All costs to be paid by the Succession of Delphine Jackson.