Jones v. Jones

Supreme Court of Louisiana

Jones v. Jones

100 So. 2d 502, 234 La. 549, 1958 La. LEXIS 1117

CourtSupreme Court of Louisiana

DecidedFebruary 10, 1958

DocketNo. 43820

StatusPublished

Cited by6 cases

This text of 100 So. 2d 502 (Jones v. Jones) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jones v. Jones, 100 So. 2d 502, 234 La. 549, 1958 La. LEXIS 1117 (La. 1958).

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Opinion

McCALEB, Justice.

Plaintiff, Mrs. Charlene Willoughby Jones, duly qualified as dative testamentary executrix of the estate of her late husband, Wilson Albert Jones, has appealed from a judgment of the district court rejecting her demands to recover $477,096.69 from the defendant, M. Carl Jones (brother of the deceased), which she claims had accrued to the credit of decedent up to the date of his death due to his retained one-fourth interest in an oil and gas lease assigned by him to the defendant in 1933, affecting certain lands in Gregg County, Texas.

Defendant has filed a motion to dismiss the appeal based on the ground that plaintiff-appellant had no right to prosecute the suit or to take an appeal from the adverse judgment of the district court, asserting that the functions of a testamentary executor without seizin are, as stated in Article 1660 of the LSA Civil Code, “ * * * confined to see to the execution of the legacies contained in the will, and to cause the inventory and other conservatory acts of the property of the succession to be made”.

The motion is not tenable. Whether plaintiff-appellant has a right to sue, or an interest to pursue, or capacity to sue is a matter which properly addresses itself to a hearing of the case and cannot be considered on a motion to dismiss. It is well settled that “Where a judgment is, in its nature, appealable, and an appeal has been granted and perfected,.the right to be heard thereon does not depend on the merits of appellant’s case, which are to be determined on the hearing, and not upon a motion to dismiss”. Board of School Directors of Caldwell Parish v. Meredith, 140 La. 269, 72 So. 960.

In Lavergne v. Roussel, 129 La. 915, 916, 72 So. 453, the syllabus states:

“A motion to dismiss an appeal which sets forth no defect, error, or irregularity in the taking of the appeal or in the filing of the transcript in the appellate court will be denied.”

See also Kendrick v. Garrene, 231 La. 462, 91 So.2d 603 and compare authorities involving acquiescence in the judgment, moot questions and lack of appellate jurisdiction.

The motion to dismiss is denied.

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McCALEB, Justice.

Plaintiff, Mrs. Charlene Willoughby Jones, duly qualified as dative testamentary executrix of the estate of her late husband, Wilson Albert Jones, has appealed from a judgment of the district court rejecting her demands to recover $477,096.69 from the defendant, M. Carl Jones (brother of the deceased), which she claims had accrued to the credit of decedent up to the date of his death due to his retained one-fourth interest in an oil and gas lease assigned by him to the defendant in 1933, affecting certain lands in Gregg County, Texas.

Defendant has filed a motion to dismiss the appeal based on the ground that plaintiff-appellant had no right to prosecute the suit or to take an appeal from the adverse judgment of the district court, asserting that the functions of a testamentary executor without seizin are, as stated in Article 1660 of the LSA Civil Code, “ * * * confined to see to the execution of the legacies contained in the will, and to cause the inventory and other conservatory acts of the property of the succession to be made”.

The motion is not tenable. Whether plaintiff-appellant has a right to sue, or an interest to pursue, or capacity to sue is a matter which properly addresses itself to a hearing of the case and cannot be considered on a motion to dismiss. It is well settled that “Where a judgment is, in its nature, appealable, and an appeal has been granted and perfected,.the right to be heard thereon does not depend on the merits of appellant’s case, which are to be determined on the hearing, and not upon a motion to dismiss”. Board of School Directors of Caldwell Parish v. Meredith, 140 La. 269, 72 So. 960.

In Lavergne v. Roussel, 129 La. 915, 916, 72 So. 453, the syllabus states:

“A motion to dismiss an appeal which sets forth no defect, error, or irregularity in the taking of the appeal or in the filing of the transcript in the appellate court will be denied.”

See also Kendrick v. Garrene, 231 La. 462, 91 So.2d 603 and compare authorities involving acquiescence in the judgment, moot questions and lack of appellate jurisdiction.

The motion to dismiss is denied.

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100 So. 2d 502, 234 La. 549, 1958 La. LEXIS 1117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-jones-la-1958.

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