
    
      THE STATE vs. JUDGE PITOT.
    
    Application for a mandamus.
    
    An appeal lies from an order revoking the appointment of an attorney of absent heirs.
    
      Seghers made oath that C. Andre, a free woman of colour, died in the city of New-Orleans, and G. Antheman, her executor, procured the probate of her will and letters testamentary, and possessed himself of her estate, amounting, according to the inventory, to $2090 99 cents, and the deponent, on the application of a creditor of the estate, was appointed to represent the absent heirs, and instituted a suit to have the will set aside—that the executor and legatees, whom he had caused to be cited for this purpose, instead of answering to his allegations, obtained a rule on him to show cause why his appointment should not be set aside, on the ground that the deceased had no relations, and consequently no legal heirs; which rule was soon after made absolute, and he decreed to pay costs; but before the rendition of the said decree, he filed a petition of appeal from the decree ordering the execution of the will; but the judge refused to allow the appeal—whereupon the deponent filed his petition of appeal from the decree by which his appointment was revoked and he ordered to pay costs, and the judge refused also to allow this second appeal.
    East'n District.
    
      Dec. 1822.
    On this affidavit, a rule was prayed for and obtained, on the judge of the court of probates of the city and parish of New-Orleans, to show cause why a mandamus should not issue, directing him to allow the two appeals.
    He accordingly showed for cause, that appointed the deponent to represent the deceased's absent heirs, under the belief that she might have such heirs; who, as in other cases, might be found and come and claim the estate: but that soon after, having more maturely considered the will, and been positively informed that the deceased was brought a great many years ago, when she was a child, from the coast of Guinea, as a slave—that neither her African name, nor the name of the tribe to which she belonged, could be ascertained; and that (admitting what can never be expected to be proven) she left relations in her native country, who still remain there or have been transported; admitting also, that there are in this part of Africa, laws recognising a system of succession, by which they might inherit the deceased’s estate, it would be impossible to find or discover them; so that it could not reasonably be pretended that there were absent heirs—the respondent, on motion, revoked the appointment.
    That the appointment being thus revoked, Seghers was without authority or capacity to appeal.
   Martin, J.

delivered the opinion of the court. The facts detailed in the first part of the judge's return, may establish the correctness of the decisions complained of, and was the case before us, might induce us to affirm them. We are not, however, apprized of the nature of the information spoken of, and its legality and sufficiency are proper subjects of inquiry on the appeal.

If the belief or consciousness of the correctness of a judgment in the court who pronounced it, could justify the judge in refusing to allow an appeal from it, appeals would very rarely be allowed; for, it is hoped, no judge ever gives a decision which he does not believe to be correct.

Seghers, for the plaintiff, Denis and Mazureau for the defendants.

The affidavit, on which he grounded the rule, shows a legal appointment, which conferred certain rights on the absent heirs, to wit, the means of standing in judgment, and having their rights prosecuted. If facts have since been shown to the judge of probates, which authorized him to revoke the appointment and destroy these rights, we cannot refuse our aid to a party who seeks to show that the judge erred in receiving the evidence on which he acted—that this evidence is illegal or insufficient, and that an illogical conclusion was drawn therefrom.

We are therefore of opinion, that the rule be made absolute.  