79 So. 2d 565 | La. | 1955
This case, which has been submitted on a motion to dismiss the appeal and also on its merits, involves the administration of the Succession of Walter P. Estopinal, who died on January 11, 1945. On October 8,. 1948, his widow, the appellant herein, petitioned the Civil District Court for the Parish of Orleans to be named administratrix of the succession. Her request was-opposed by the decedent’s sister, Mrs. Lucille Estopinal, wife of Albert Cousin, the appellee herein, his mother, brothers and. other sisters, on the ground that the deceased was domiciled in St. Bernard Parish at the time of his death and therefore that the court was without jurisdiction.- After a trial on this issue, the court sustained the opposition, holding that the evidence revealed that the deceased was domiciled in St. Bernard Parish at the time of his death, and the petition for administration was accordingly dismissed. In February of 1949, appellant herein appealed devolutively from the judgment, that appeal being subsequently lodged under Docket No¡ 39,413 of this court.
On March 30, 1949, appellee filed a petition in the instant case in the Twenty-Fifth Judicial District Court for the Parish of St. Bernard, alleging that the decedent was domiciled in that parish at the.time of his death and asked that she be appointed administratrix. In due course, appellant opposed the requested appointment, alleging that the court was without jurisdiction because the decedent was a resident of the Parish of Orleans at the time of his death and further setting forth that this same issue was pending in this court on appeal
While this appeal was pending, the other -appeal, which, had been taken from the judgment of the Civil District Court for the Parish of Orleans, bearing No. 39,413 of the-docket, was dismissed as abandoned on June -10, 1954, under Section 3 of Rule VIII of the Rules of this Court.
Following the dismissal of that appeal, appellee filed a motion to dismiss the present appeal contending, among other things, that there is no issue left for decision as the other appeal, which formed the basis for the opposition to appellee’s appointment, is no longer pending.
The motion to dismiss is well taken. Since the only question involved in the ■appeals was whether the decedent was domiciled in Orleans Parish or St. Bernard Parish at the time of his death, it is clear that, when appellant abandoned her appeal from the judgment of the Civil District Court for the Parish of Orleans, the issue which she has again raised on this appeal became res adjudicata insofar as she was concerned. Hence, the matter presents nothing for review.
The appeal is dismissed.