| La. | Jul 15, 1843
The dismissal of this appeal is asked on the ground, that it was taken after the expiration of one year, from the rendition of the judgment. Art. 593 of the Code of Practice. The judgment was rendered on the 8th of April, 1842, and signed on the 14th; a petition of appeal was filed on the 26th. The Judge refused to allow the appeal; and application to us became necessary, and a mandamus was obtained, obedience to which was delayed on account of the indisposition of the Judge.
As the application for an appeal was made before the expiration of the period fixed by law, and the delay resulted from the recourse to us, which the refusal of the Judge rendered needful, the appellant cannot suffer on that account. The appeal must, therefore, be sustained.
The appellant filed an exception, on the ground, that the claim had not been presented for his approbation, and that the claimant ought to have proceeded by a petition, and not by a rule to show cause, as he has done, relying on the Code of Practice, art. 984, et seq.
The exception ought to have been sustained, not on the first ground, for we have held that unliquidated claims need not be presented to the administrator for his approbation. Anderson's administrator v. Bisdsall’s administratrix, 19 La. 444. But on the second ; for the Code of Practice, art. 986, requires if the claim be unliquidated, as the present is, or if liquidated and disapproved, that the party should bring his action in the ordinary manner.
The Court of Probates erred in giving judgment against the appellant on the rule.