175 La. 715

#### Succession of RAPHAEL.

No. 31637.

Supreme Court of Louisiana.

Oct. 31, 1932.

Habans & Coleman, Louise Louque Burton, arid Gus. Levy, all of New Orleans, for appellants.

Emerson Bentley and Joseph A. Casey, both of New Orleans, for appellee.

BRUNOT, J.

This appeal is by the plaintiffs from an adverse judgment rendered in a suit to annul a judgment appointing Stella Raphael administratrix of the succession of Louise Raphael, deceased. Appellants opposed the administration of the succession and the appointment of Stella Raphael as administra-trix, but their demands were denied and their opposition was dismissed. The judgment was signed February 1, 1929. No appeal therefrom was taken, and Stella Raphael qualified thereunder and proceeded to administer the estate. The administration was closed, except for the distribution of the assets of the estate, and -on June 24,1929, the admin-istratrix filed her final account. Appellants opposed the homologation of the account upon substantially the same grounds they had urged in opposition to Stella Raphael’s appointment as administratrix, viz.: That the administratrix was not an heir of the deceased and was attempting to perpetrate a fraud upon the court. So far as the record discloses, this opposition is still pending in the civil district court. This suit to -annul the judgment appointing Stella Raphael ad-ministratrix of the succession was served upon the administratrix on February 6, -Í930, more than a year after the rendition and signing of said judgment, and it is based, principally, upon the same grounds urged in appellants’ opposition to her appointment, and in their pending opposition to her final account, and upon the further ground that they had discovered, in the interim between the date of the judgment sought to be annulled and the date of the filing of this suit, new evidence.

The question presented is whether or not, under the facts stated, the judgment appointing Stella Raphael administratrix can now be annulled and set aside. It appears from the record that the newly discovered evidence is merely corroborative, and appellee contends that a suit to annul a judgment is prescribed in one year, particularly. when the newly discovered evidence is merely corroborative, and when the alleged fraud in’the petition to annul was known to the party alleging it more than one .year prior to the filing of the suit to annul. This record discloses that appellants alleged the illegitimacy of Stella Raphael in their opposition to her appointment as administra-trix, which opposition was filed May 31,1928, one year, nine months, and six days before the petition in this case was served upon her. We think the appellee’s contention is sound and that Code Prac. art. 613 applies to the facts of this case. _

Appellants’ counsel, in argument, expressed the fear that the judgment they seek to annul might be a bar to their establishing *430their heirship and asserting their rights, as-such, in thej/r pending opposition to the ad-ministratrix’s final account. We think their fears in this respect are groundless. The judgment appointing- Stella Raphael is res adjudicata only as to that appointment and the administration of the estate by the appointee. Eor the reasons stated the judgment appealed from is affirmed at appellants’ ‘cost.