Succession of Bothick

34 So. 163, 110 La. 109, 1901 La. LEXIS 758

• Court: Supreme Court of Louisiana
• Decided: December 2, 1901
• Docket: No. 14,198
• Status: Published

Opinions

On Motion to Dismiss Appeal.

BLANCHARD, J.

Mrs. Caroline Louise Hodding appeals from two judgments rendered in proceedings taken in this succession record on matters pertaining to the succession, or incidental thereto. One of the judgments was rendered in March, 1901, the other in June, 1901.

Her appeal is met by a motion to dismiss filed by Mrs.'Margaret Louise Tyree, divorced wife of Thos. B. Bothick.

It appears that the interest of this mover in the succession of Thos. W. Bothick arose in this way:

Olivia T. Tyree was the third wife and surviving widow in community of Thos. W. Bothick; she was, during the marriage, his donee of particular property by acts of donation inter vivosj she was a legatee under his will; and she was, finally, the executrix of his estate. She died in November 1899, without heirs in either ascending or descending line. Whereupon her heirs of the collateral line — her three sisters — claimed her succession and were formally, by judgment pronounced in December 1899, recognized as her heirs and sent into possession.

Whatever succession — property and effects —she had was as might result from the settlement of the succession of her "deceased husband, Thos. W. Bothick, then in process of administration and still unsettled.

One of her three sisters, and, therefore, one of her heirs, is the present mover of the motion to dismiss this appeal — Mrs. Margaret Louise Tyree, whose divorced husband was 'the son and one of the heirs of Thos. W. Bothick.

Continuing the narrative further, it appears that after being recognized as heirs of Olivia T. Bothick, her three sisters were sued by Caroline Louise Hoddipg for a debt due the latter by Olivia T. Bothick, and judgment was rendered in favor of Mrs. Hodding against the three sisters each for her virile share of the debt. Whereupon, under fi. fa. .issued on this judgment the sheriff seized what was, practically, the interest of Olivia T. Bothick in the settlement of the succession of Thos. W. Bothick.

The present appeal of Mrs. Hodding is not from any decree directly determinative of her rights in the matter of her judgment against the sisters and heirs of Olivia T. Bothick, and the seizure made thereunder; but is from decrees relating to the settlement and partition of the succession of Thos. W. Bothick among his heirs, which decrees, if permitted to stand, will disastrously affect the proceedings taken by her to execute the ■said judgment.

We, therefore, find she has an interest to appeal — more interest, perhaps, to sustain her appeal than the mover of the motion to dismiss has to resist it, considering that whatever interest the latter has was seized under ,the judgment of this very appellant.

We also find that this Court has jurisdiction ratione materia of the appeal. The funds seized under garnishment in the hands of the Clerk of Court and Jos. D. Taylor, notary, and the lot of ground levied on under the judgment in Mrs. Hodding’s favor, which funds and lot are involved in attempted partition proceedings taken by certain of the heirs of Thos. W. Bothick and are matters affected by the judgments appealed from, alone exceed in amount or value the minimum jurisdictional limit of this Court.

Nor is it ground to dismiss the appeal that, perhaps, all the assets of the succession of Thos. W. Bothick may be absorbed by claims prior in rank to that asserted by the appellant.

Neither do we find any merit in the last ground of dismissal, to-wit: that Mrs. Hod-ding has acquiesced in the judgment appealed'from. We have found nothing in the record anywhere to justify this averment, and if it exist, counsel has not pointed out where it may be discovered.

As to the transcript of appeal being defective, the clerk of 'the trial court certifies that the record of a certain suit which was offered in evidence by appellees cannot be found. This is no ground for dismissal of the appeal unless it appear that the missing record was lost or mislaid through fault of the appellant.

Other parts of the record said to be missing are not copied into the transcript because already a part of the archives of this court in the transcripts of former appeals taken in the succession of Thos. W. Bothick. See Rule 1, last paragraph, of the Rules of this Court (21 South, ix).

A second motion to dismiss the appeal on the same grounds was filed by another of the appellees. Both are without merit and are denied.