36 La. Ann. 301 | La. | 1884
The opinion of the Court was delivered b.v
This is an application for a mandamus to compel the district judge to grant the relatrix a suspensive appeal from certain decrees or judgments rendered by him, the motion therefor having been seasonably offered, accompanied by a proper bond.
The district judge returns that the rulings made by him and complained of are not final judgments, but simply interlocutory decrees, tire execution of which can work no irreparable injury.
Our learned brother labors next to establish the correctness of the rulings in question.
With this last part of the return this Court cannot presently be concerned. The difficulty now to be solved consists in determining whether the rulings sought to be brought up for review can or not be suspen-sively aqipealed from; in other words, whether they are final judgments or mere interlocutory decrees, which can work no ii reparable injury.
We will proceed to examine them seriatim.
I.
It appears that the executors of John Geddes have instituted an action in which, after certain averments, they pray that Widow Geddes, as also the universal legatee of the deceased and the attorney for absent heirs, bo cited; that the said Mrs. Geddes be forced to make her decision whether she elects to accept the community or to renounce the same; and in case she elects to accept, then that a liquidation and partition of said community be ordered and adjudged to take place, according to law. The executors ask for all further orders and pray for all other relief as maybe required in the premises.
Widow Geddes excepted to the petition, on the ground that it discloses no right, of action. Her exception having been overruled, she appeared accepting the community, under benefit of inventory, and further answered, praying to bo dismissed with her costs.
After trial the court rendered a judgment in favor of the executors and against the widow in community, decreeing that there be a liquidation of said community, in order to determine the respective rights of said widow and of the heirs of the deceased, and dismissing the demand for a partition, without prejudice to any right which the plain
The judgment was rendered on February 4th, and signed on February 8, 1884. •
The petition had two objects: a liquidation of the community and a partition of its assets.
The judgment decreed the liquidation and declined the partition, with a reserve.
Tt has effectually passed upon the only two questions or issues presented and has set the controversy at rest. It is no longer open to review b3>- the court which rendered it, and if erroneous, can be reformed on appeal only, the caso being appealable.
It has certainly the substance and the form of a final judgment which can acquire the force of res judicata and thus become definitive or sov-% e,reign..
All final judgments, where the matter in dispute is within the jurisdiction of this Court, can be suspensively appealed from, to it, whore they order anything to bo done, or where, they would in some way produce an effect, unless the law declares otherwise. C. P. 565.
The judgment complained of does not belong to tho class of those from which the Code of Practice declares that no suspensive appeal shall lie and which shall he executed provisionally. C. P. 580; 20 A. 574, 529; 35 A. 507.
II.
Tho second ruling is one dismissing a rule taken by tho relatrix on the executors to compel them to pay certain legacies to oilier partios and to erect a tomb for the deceased.
The decree was signed as final judgments usually arc. C. P. 546. Tt is itself a final judgment. It is difficult to perceive, how such a judgment of dismissal can be executed and how its effects can bo suspended. The relatrix lias thrown no light on this question and possibly sho was not bound to do so. If, however, the judgment be susceptible of an effoc-t, she wishes to suspend its execution. The suspensive appeal which slie seeks may or not suspend, as there may or not exist an effect or execution to be suspended. It is not such judgment as tho law provides shall not be suspensively appealed from. C. P. 580, 575.
III.
The last action of tile judge complained of is an ex parte order made at the instance of the executors to take testimony under commission, “in the matter of tho order and judgment * * * rendered on the 4th of February, 1884,” and directing the widow to be notified thereof.
It is, therefore, ordered and decreed that the alternative mandamus herein issued be made peremptory and that the restraining order made in limine be made absolute.