36 La. Ann. 981 | La. | 1884
The opinion of the Court was delivered by
This is an application for a mandamus against the judge of the Twenty-third Judicial District, sitting in the place of the judge
At the instance of relator, a sale of the property depending upon the succession of her father, Gabriel Gusman, had been made under the order of the court, with a view to a partition of the same among the heirs of the deceased; and a receiver had been appointed and qualified to take charge of the property, and to receive the proceeds of the sale pending the proceedings for partition.
On a rule taken by some of the heirs, the receiver presented his account to the court, with a prayer for the homologation thereof and fol-láis discharge.
The account was opposed by the relator herein, who urged, among other objections, that the account did not embrace all the property of the succession, and that the receiver claimed more credits than he was entitled to. Judgment was rendered, adversely to relator, homologat-ing the receiver’s account as presented, andU-eferring the parties to a notary for final partition. Relator then moved for an appeal from said judgment, which was refused by the judge. Hence this application for a mandamus to compel him to grant the order of appeal prayed for.
Although the judge has formally accepted service of our alternative writ, he has not filed his answer, or filed a brief, or favored us with his views in any shape in justification of his course in the premises.
We gather from the record that the judge rested his refusal of relator’s prayer for an appeal on the ground that the judgment complained of is u a mere interlocutory order and not ajjpealable.” The legal effect of the judgment is to fix and determine the active mass of the succession as a preparatory step to the final partition and distribution of the same among the heirs. The amount shown by the judgment to remain in the hands of the receiver to the credit of the succession, will be the basis on which the notary will proceed to effect the partition under the. authority of the court.
His proceedings and his acts maybe the subject of future opposition or contention between the heirs, and may be the subject of future investigation and adjudication by the court. But these contentions and probable adjudications cannot involve or affect the issue of the correctness of the receiver’s account, which has already been judicially tested and approved.
The receiver, as such, has no connection with, and is not a party to, the proceedings before the notary for the final partition, and therefore the errors of his account will not and cannot be the subject of judicial
In the case of the State ex rel. Ikerd vs. Judge, 35 Ann. 212, we compelled an appeal from a decree dismissing part of a plaintiff’s petition and part of the prayer thereof, on the ground- that the decree would work irreparable injury to the complainant.
The rule should apply with much greater force to a case in which the judgment complained of judicially settles and determines the responsibility of a fiduciary agent for large sums entrusted to his care and custody, and fixes the basis of the partition of such funds among all the parties in interest.
The judge manifestly erred in refusing the appeal prajmd for in this matter.
It is therefore ordered that the alternative writ of mandamus issued herein be made peremptory; and the judge a quo is hereby commanded to grant a devolutive appeal to relator from the judgment rendered and signed by him on October 21, 1884, homologating the account of John McGrath, receiver of the proceeds realized from the sale of the property depending on the succession of Gabriel Gusman; and it is finally ordered that he be condemned to pay the costs of these proceedings.
