9647 | La. | Mar 15, 1886
The opinion of the Court was delivered by
This appeal is a sequel of tl)e question just decided in the case of A. A. Farmer vs. W. C. Hafley, No. 9446, on the docket of this Court, and reference is made to that decision for a full statement of the facts which have a bearing on both cases.
After the finality of the judgment which purported to remove TIafley from the functions of administrator of the succession of Seth Bedford, Farmer asked and obtained an order appointing him provisional administrator of that succession on a bond of one hundred dollars.
This appeal is taken by Hafley from that decree, and the grounds of the motion to dismiss urged by Farmer will now he considered in th® .order in which they are presented by counsel:
1. That no appeal lies from the order appointing Farmer, and this •court is without jurisdiction.
As the whole ease has been submitted on the face of the record and on the motion to dismiss,” without oral argument or brief, by appellee's numerous counsel, we are left to surmise the precise meaning of this ground, as well as of the others, from the language used, 'and which is somewhat indefinite.
The right to appeal from such a it order as is herein brought up is granted in terms by Article 1120 of the Civil 'Code. True, the law provides that the appointment is not retarded in its effect by the appeal, hut in a motion to dismiss we are not concerned with the effect, but only with the right, of appeal. Succession of Clark, 30 Ann. 804.
In the absence of specifications we are left in the dark as to the ground of our want of jurisdiction, hut if it he rations materia’, we find a ready answer in an allegation in Farmer’s petition for the removal of Hafley as administrator, which is part of this record. He sets forth that “ there still remains in the succession assets, consisting of rights .and credits, and causes of action, amounting in value to $19,800.” This strongly points to our jurisdiction over the contested appointment of an administrator for such a succession, and corroborates the jurisdictional allegations in the petition supported by affidavit of appellant’s attorney.
2. That in any event no suspensive appeal could he taken therefrom.
The appeal was taken both in the suspensive and devolutive forms. If under the law it cannot suspend the execution of the judgment, it i» certainly good as a devolutive appeal. Under a motion fcojdismiss an .appeal it is not necessary to decide the specific character of the appeal.
Again we are left to surmise the precise meaning of general and loose allegations, which, in justice, should he overruled without giving any reasons.
But the record shows that the appeal was prayed for hy petition, and granted hy the cleric of the court, in the absence of the judge from the parish, and the law vests the clerk with full power in such cases. Act No. 75 of 1884.
The record further shows that citation of appeal was prayed for, and served on appellee, that a bond of appeal was furnished in accordance with the terms of the order of appeal, and that the transcript was filed here even before the date on which the appeal had been made returnable both according to law and according to the order. If anything else is required, counsel for appellee have omitted to inform us.
4. That said W. C. Ilafley has shown no appealable interest herein.
As the administrator proposed to be ousted in the case of Farmer vs.. Ilafley, he had undoubtedly an appealable interest in that judgment. The record shows that he had taken and perfected a suspensive appeal therefrom, he therefore had the right to bring up the present appeal a« an auxiliary to the other. C. C. 1160; Brown vs. Brown, 30 Ann. 504; Succession of Clark, 30 Ann. 804.
We are not concerned with the question involving the effect of his api>eal on the appointment of appellee pending his appeal.
The motion to dismiss this appeal is therefore overruled.
On the merits, the judgment appealed from, which is merely a consequence of the judgment which purported to remove Ilafley as administrator of the succession of Seth Bedford, must therefore share th® same fate. Under the effect of our decree in that case, Hafley remains administrator of the succession, hence there is no room for a provisional administrator or .any other kind of succession representative;, therefore the appointment of Farmer falls as a natural sequence from the reversal of the judgment which purported to create a. vacancy in the office of administrator of the succession.
We do not propose to discuss the legality of the appointment of a provisional administrator, or the alleged illegality of such an appointment, or the legal effect of any act which Farmer may have performed as provisional administrator, whether such an office is known to our-
Tt is therefore ordered that the judgment or decree appealed from be annulled and set aside, and that Farmer’s application for appointment as provisional administrator of the succession of Seth Bedford be rejected, and that he be condemned to pay all costs in both courts.