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January 1, 1839


IN error to the District Court of the United States for the eastern district of Louisiana.

In the District Court of the eastern district of Louisiana, on the eighth day of April, 1836, Johann Frederick Stein, an alien and a subject of the King of Hanover, presented a petition, stating that he was the sole and lawful heir of Nicholas Stein, or sometimes called Nicholas Stone, who had died some time before, in the parish of St. Tammany, in the state of Louisiana. The petition prayed that William Bowman, who had been appointed curator of the estate of the deceased Stein, by the proper tribunal, should be decreed to account for the estate and effects received by him, and to deliver to the petitioner the property of the succession which had not been sold, and to pay to him the amount in his hands.

The answer of William Bowman, the curator, denied that the petitioner, Johann Frederick Stein, was the heir or related to the deceased Nicholas Stein, or Stone; and averred that the claim was interposed to vex and harass the respondent, and the true heirs of Nicholas Stein.

Afterwards, Andreas Stein, residing in the kingdom of Hanover, presented a petition to the District Court, stating that in April, 1834, he had applied to the Court of Probate, of New Orleans, claiming the succession to Nicholas Stein, as the heir of the deceased, and that by the unjust interference of Johann Frederick Stein, he had been prevented recovering the same.

Subsequently, Johann Stein, Anna Sophia Stein, wife of Mathias Ahreus, and Luer Stein, a minor, assisted by his curator or trustee, and by his guardian, all of the kingdom of Hanover, filed their petition in the Circuit Court, stating that they are the only heirs of Nicholas Stein, and that in 1835 they had instituted a suit against William Bowman, which suit is still pending. They aver that the claim of Johann Frederick Stein is fraudulent, and that he is not the heir of Nicholas Stein, as he alleges. They pray leave to introduce in the suit, and state that William Bowman is a mere stakeholder. William Bowman afterwards filed a petition in the District Court, setting forth that individuals belonging to three different families, the petitioners, pretend to be the nearest relations of the late Nicholas Stein, and to be entitled to his estate; and he asks, as he is only a stakeholder, that the parties contesting the claims of each other may be called in to take cognizance of this suit, and defend him against it.

The petitioner, Johann Frederick Stein, put in a general replication to each of the petitions of intervention.

The case was, on the application of William Bowman, referred to a jury, and on the 3d of March, 1837, it came on for trial; and the jury found a verdict for the defendant.

On the trial of the cause, bills of exceptions were signed by the Court to the decisions of the Court, on points arising during the trial of the cause.

The affidavit of John Rist was laid before the Court, stating that he had made diligent inquiry for Francis Stuffle, whose deposition was taken in the cause in the parish Court, between the plaintiff and Bowman; 'that he was unable to find him, and had been informed, and truly believed he was dead; this information had been derived from those who knew him.'

The deposition also stated, that Nicholas Mouzat, whose testimony was taken in the same cause, left Louisiana before the commencement of this suit, and ascended the Mississippi with the intention of going to the state of Ohio; that he had not since heard from him, although he had made inquiries for him.

The deposition of Francis Stuffle was then offered in evidence by the plaintiff, and was admitted by the Court; to which the defendant excepted.

The defendant called the wife of Francis Stuffle, he being dead, to prove that her husband had been bribed by John Rist to give evidence in the case; and also to prove he had frequently told her he knew nothing of the plaintiff, or of Nicholas Stein. The plaintiff objected to the admission of the witness; but the Court allowed her to be sworn, and she gave her testimony. The plaintiff excepted.

The plaintiff then offered in evidence certain German documents, to prove the pedigree of the petitioner, which were rejected by the Court, as not being sufficiently authenticated; and to this rejection the plaintiff excepted.

The depositions which were taken, and which were in the German language, were not signed by the deponents; and at the end of each deposition, it is stated that each of the witnesses assented to the same. A magistrate of the place certifies to this fact, and this is attested under his seal by the 'Royal British Hanoverian Landrostey;' and his signature is attested under his seal, by the 'Royal British Hanoverian Minister Residentis.'

The defendant, William Bowman, was, during the trial, admitted as a witness by the Court, to testify as to the merits of the controversy. The plaintiff excepted to his admission.

The Court refused to admit Stultz as a witness for the plaintiff, to prove that he had been in Hanover the preceding summer, and there heard from many old persons of whom he inquired, that the plaintiff was the brother of Nicholas Stein. The witness stated that he had gone to Germany for the purpose of taking a deposition: the Court were of opinion, that the depositions of those persons should have been taken.

The plaintiff prosecuted this writ of error.

The case was submitted to the Court, in printed arguments, by Mr. Crittenden, for the plaintiff in error; and by Mr. Garland for the defendant.

Mr. Crittenden, for the plaintiff in error, stated that:

The plaintiff, J. F. Stein, insists that the Court erred in all the opinions and decisions excepted on his part, and has prosecuted a writ of error, to reverse the judgment rendered against him.

A decision by this Court, on all the questions presented by these bills of exceptions, will probably be necessary to the proper final disposition of the case in the Court below, and, therefore, they are all insisted upon, and submitted to this Court. If the single object was merely a reversal of the judgment, it is supposed that errors obvious and sufficient for the purpose are made manifest by the bills of exceptions.

From the first exception it appears that the Court permitted Bowman, the defendant, to become a witness in his own case; and, in the second, that a woman was permitted to violate the sacred confidence and intimacy of married life, by giving testimony to betray and criminate her deceased husband. The law condemns it. Starkie on Evidence, vol. ii. part 4, page 705, &c., and 709, &c.

Mr. Garland, for the defendant in error.

Nicholas Stein, generally called and known as Nicholas Stone, died in the parish of St. Tammany, Louisiana, in the year 1833, leaving an estate estimated to be worth about twenty-five thousand dollars. In October 1833, Bowman, one of the present defendants, was appointed by the proper tribunal, curator of the estate, and took upon himself the administration.

The plaintiff alleges that Nicholas Stein died without leaving either legal ascendants, descendants, or collaterals, except himself; and that he is the only brother and sole heir. That the term allowed by law to Bowman to administer the estate has expired, and he is entitled to the whole of it. He therefore asks for an account and payment of the amount that has been received.

Bowman denies positively that the plaintiff is the brother or any relation of Nicholas Stein, deceased; and says that his claim to the estate is unfounded and fraudulent, and intended to defraud, vex, and harass him and the real heirs.

Andrew Stein intervenes in the suit, and alleges he is the nearest of kin, and sole heir of Nicholas Stein, and claims the estate; and that he has instituted a suit in one of the state tribunals, to wit, the Probate Court of the parish of St. Tammany, to recover it; which suit was then, and is now pending.

Johann Stein, Anna Sophia Stein, wife of Mathias Ahreus, and Luer Stein, a minor, also intervene in the suit; and say they are the only heirs of Nicholas Stein, and claim the estate.

In answer to all these petitions, Bowman, the defendant, answers, that he is merely a stakeholder; that he has three suits pending against him to recover the same property, to wit, the case now on trial, and two suits in St. Tammany.

The plaintiff and appellant answers the two petitions of intervention, and take issue with the parties named in them, as to their claims to be recognised as heirs.

Nicholas Stein, it appears from the testimony, came to the United States about thirty years previous to his death, from the kingdom of Hanover. After his arrival, he never heard from any of his relations, or did he ever have any intercourse with them, except writing one letter, which is in the possession of one of the interpleaders, addressed to him as a brother.

The record shows that a man named Rist (who is a gambler in Louisiana) is the person who is prosecuting this claim in the name of the plaintiff and appellant. We allege it is fraudulent, and is attempted to be sustained by perjury; and that Rist is the party really interested.

It also very satisfactorily appears that a suit was instituted in 1834, by the appellant, or rather by Rist, in his name, in the Probate Court of the parish of St. Tammany, against the appellees, to recover this same property. This was in the parish where Nicholas Stein had resided many years previous to his death, and where all the circumstances relating to his affairs were known. That suit was decided against the plaintiff on the merits. He took an appeal to the Supreme Court of the state, where every point taken in the inferior Court, and decided upon in the course of the trial, was affirmed; but that tribunal set aside the final judgment on the merits, without giving any reason for so doing, and entered up a judgment of nonsuit. The cause was tried by a jury, and after an investigation of three days a general verdict was rendered in favour of the defendant, on the 4th of March, 1837.

On the 11th of March, 1837, the plaintiff, in an informal manner, moved the Court for a new trial, on various grounds; which motion was rejected, because not asked for within the delay prescribed by law and the rules of the Court. It will not be denied, that so far as all questions of practice are involved, that the laws of the state of Louisiana, and the decisions of its Courts, are to govern in the Courts of the United States. 7 Laws United States, p. 315.

In this case a new trial cannot be awarded, and the cause remanded, even if the Court should be of opinion there was error in the decision of any of the points made in the District Court; because the appellant has abandoned or lost the right he may have had to have his case revised or examined in that way. A new trial being one of the modes prescribed by law of having a judgment revised or re-examined, if the party does not avail himself of it in the manner and within the time directed, he can no more have that benefit than he could that of an appeal, if he had not taken it within the time and in the manner directed by law. Louisiana Code of Practice, articles 556, 557. 4 Martin's Reports, N. S. 532.

The manner of applying for a new trial, and the time within which the application must be made, is specially and particularly described; and the appellant has not complied with the law in a single particular. Louisiana Code of Practice, articles 558, 559, 560, 561.

Taking it for granted that the Court will not remand the cause, it must be examined on its merits; and it is submitted whether there are sufficient grounds to set aside the verdict of the jury, and reverse the judgment. The law of the case is very plain, if the plaintiff has sustained his allegations by proof. Is the sole relative in the ascending, descending, or collateral line to Nicholas Stein, deceased? If he is, there is an end of the question. Is there enough on the record to satisfy the Court that he is, even admitting all the evidence rejected in the Court below? It is not sufficient the plaintiff should show he is a brother; but before he can claim the whole estate he must show the father and mother of Nicholas Stein are dead. If both or either of them are alive, the brother cannot inherit the whole estate; because in Louisiana ascendants inherit as well as brothers and sisters. Ascendants are what are called forced heirs, and like descendants, cannot be disinherited, even by testament, but for ...

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