Warren v. Saltenberer

Slidell, J. dissenting. This is an action to recover certain furniture or its value, also monthly rent by way of damages for its detention. The petition prayed for the citation of Mrs. Saltenberer personally. It, however, was alleged in the petition that she was the administratrix of Dwight McMullin, and that the property had been placed in his possession by Warren, under a contract of deposit: McMullin undertaking to take care of it for Warren during his absence and to restore it to him upon demand. The petitioner further alleged in substance that it remained in McMullin’s possession under this contract, until his death, and that it was inventoried as part of his succession by the administratrix, notwithstanding the opposition of Warren. Under the allegations of the petition and the evidence in the cause, Mrs. Saltenberer, it seems to me, must be considered as having received and as being in possession of the properly in her capacity of administratrix. The possession was held by the deceased under a contract with the plaintiff, and passed under that contract to his succession. The plaintiff’s claim, therefore, was a claim against the succession for the fulfillment of the contract by the restoration of the property, and not against the defendant personally. The suit was therefore, I think, improperly brought against her personally, and the judgment condemning her personally seems, to me, erroneous.