Opinion
Nos. 9172, 9238, 9256.
February 27, 1940. Rehearing Denied March 30, 1940.
Appeals from the District Court of the United States for the Eastern District of Louisiana; Wayne G. Borah, Judge.
Actions by Agnes E. Lewis, executrix and administrator of the succession of John B. Lewis, deceased, and others, against R.W. Fontenot, Collector for the District of Louisiana, and others, to recover the amount of an income tax collected from deceased, by Agnes E. Lewis, testamentary executrix of the succession of John B. Lewis, deceased, and others, against the United States and others to recover damages for destruction of a boat, and by Agnes E. Lewis, testamentary executrix and administrator of the succession of John B. Lewis, deceased, and others against the United States Department of Agriculture and others to recover damages for conspiracy to defraud the succession. From judgments of dismissal, plaintiffs appeal.
Affirmed.
Agnes E. Lewis, in pro. per.
Annie C. Lewis, in pro. per.
Elizabeth Lewis, in pro. per.
Rene A. Viosca, U.S. Atty., and Hilary J. Gaudin and Robert Weinstein, Asst. U.S. Attys., all of New Orleans, La., for appellees.
Before FOSTER, HOLMES, and McCORD, Circuit Judges.
These three cases were filed in 1935 by Miss Agnes E. Lewis in propria persona, as the representative of other heirs of Mr. and Mrs. John B. Lewis, and as testamentary executrix of the Succession of John B. Lewis. The appeals were submitted and argued together and we dispose of them in one opinion.
In No. 9172 Miss Lewis sought to recover $60,000 income tax alleged to have been erroneously and illegally collected from John B. Lewis for the years 1913 to 1926, inclusive. On March 29, 1939, after a hearing, the court sustained an exception of incapacity of the plaintiff and dismissed the cause.
In No. 9238 Miss Lewis sought to recover damages from the United States and others for the alleged wrongful destruction by the United States Coast Guard of a boat, "The Cherie", the property of her deceased parents. The United States excepted to the jurisdiction of the court ratione materia and moved to dismiss the cause for incapacity of the plaintiff. On March 22, 1939, after a hearing, the court sustained the exception to the jurisdiction and the motion to dismiss, and dismissed the cause.
In No. 9256 Miss Lewis alleged conspiracy of numerous defendants to defraud the succession of her father. Defendants named included various government agencies and officers, state judicial officers, state civil officers, attorneys at law, and others. Miss Lewis prayed for relief by permanent injunction and for the cancellation of certain deeds and mortgages. On April 5, 1939, after a hearing, the court sustained exceptions of incapacity, vagueness, misjoinder of parties defendant, no right or cause of action, and dismissed the cause.
Each record contains a certified copy of letters of administration which show that one Theodore L. Minvielle was appointed and confirmed "Administrator of the Succession of John B. Lewis, deceased, by the Honorable the Sixteenth Judicial District Court of Louisiana for Iberia Parish, on the 19th day of February, 1938." The records also contain certificates of the Clerk of the Sixteenth Judicial District Court to the effect that Theodore L. Minvielle had continuously served as administrator since the date of his appointment.
The records contain certified copies of a judgment pronouncing the interdiction of Miss Agnes E. Lewis. The judgment of interdiction was rendered February 11, 1937, in the Sixteenth Judicial District Court, Parish of Iberia, State of Louisiana. On February 1, 1938, one Rufus Marin was appointed curator to the interdict, Miss Agnes E. Lewis.
The administrator, Theodore L. Minvielle, and the curator, Rufus Marin, were notified of the trial of the exceptions. The minutes of the court show that both were present at the hearings in No. 9172 and No. 9238. Neither the administrator nor the curator objected to the proceedings and no effort was made to have them substituted as parties plaintiff.
It appears from the records that Miss Agnes E. Lewis was without capacity to bring suit in behalf of the Succession of John B. Lewis, and that she was incompetent to prosecute suits in her own behalf or on behalf of others. Louisiana Code of Practice (1932) Art. 108; Byrnes v. Byrnes' Minors et al., 111 La. 403, 35 So. 617; Kerwin v. Hibernia Insurance Co., 35 La.Ann. 33; 14 R.C.L. p. 611; Rules of Civil Procedure for District Courts, Rule 17 (b, c), 28 U.S.C.A. following section 723c; 11 R.C.L. Executors and Administrators, Sec. 295; Williams v. Campbell, La.App., 185 So. 683.
The judgments dismissing the actions are affirmed.
FOSTER, Circuit Judge, took no part in the decision.