Ezidore v. Cureau's Heirs

37 So. 773, 113 La. 839, 1904 La. LEXIS 712

Opinions

On Motion to Dismiss Appeal.

MONROE, J.

Plaintiff having proceeded, via executiva, to cause certain property to be sold to satisfy a mortgage of $500 imposed on it by Sidney Cureau, deceased, and the, property having realized $650, a third opposition was filed, claiming said amount on behalf of decedent’s minor child, in necessitous circumstances. There was judgment for the opponent from which the plaintiff has appealed. The opponent moves to-dismiss the appeal on the ground that this court is without jurisdiction ratione mate-rise. The ground upon which the appellate' jurisdiction is invoked is that the plaintiff, in his answer to the opposition, denies the-paternity of the minor.

It is conceded that the .minor was born of' the decedent’s wife during their marriage. It is not suggested that its legitimacy has-ever been questioned by the decedent or his heirs; and the learned judge a quo held, in ruling upon the admissibility of evidence, that it cannot be questioned by plaintiff, and, upon the merits, that “as the child of the marriage, she [the minor] is legitimate in the eyes of the law.” The question of legitimacy was therefore presented to and decided by the district court, and quoad that question the ease is appealable to this court,, and must be considered on its merits.

The motion to dismiss is therefore denied-