240 So. 2d 583 | La. Ct. App. | 1970
Mrs. Pearl Scie Eskind, as administratrix of the estate of her parents Mrs. Ida Brown, wife of and Henry Scie, filed a petition in the lower court to sell real estate of the succession at private sale. The real estate sought to be sold was the family
Three of the eleven heirs filed an opposition to the application to sell the property.
The administratrix filed a rule to show cause why the application to sell the property at private sale should not he granted and the opposition should not be dismissed. The rule was heard on April 6, 1970 and after witnesses testified and evidence was produced, the rule was made absolute and the opposition to the application of the administratrix was dismissed.
The appellants failed to perfect a timely suspensive appeal but were granted a de-volutive appeal on May 15, 1970.
On May 22, 1970 pursuant to an order of the District Court and in accordance with an Agreement of Sale between the administratrix and a third-party purchaser, the property was sold at private sale. The administratrix subsequently filed this motion to dismiss the appeal on the ground that it has become moot. We concur and the appeal will accordingly be dismissed.
A devolutive appeal does not suspend the effect or the execution of an appealable order or judgment, LSA-C.C.P. art. 2087. See also Fayard v. Celestan, La.App. 227 So.2d 795 (4th Cir. 1969); and Hibernia National Bank in New Orleans v. Mary, La.App. 174 So.2d 200 (4th Cir. 1965). These cases dealt with devolutive appeals from foreclosure proceedings where the property had been sold subsequent to the appeal. However, there is no significant difference in the theory to be applied.
Since the sale has already taken place, there is no order or judgment this court could render which would grant appellants the relief which they seek or undo that which has already been done.
For the foregoing reasons, the motion to dismiss is sustained and the appeal is dismissed.
Motion to dismiss sustained, appeal dismissed.
