Succession of Hart

25 La. Ann. 583

• Court: Supreme Court of Louisiana
• Decided: July 15, 1873
• Docket: No. 375
• Status: Published

Opinions

.Howell, J.

A motion is made to dismiss this appeal on the grounds:

First — Because all parties interested in maintaining the judgment appealed from have neither been made parties to the appeal nor cited to answer. It is urged that appellants caused a curator ad hoc to be appointed and cited to represent several absentees, who are interested to maintain the judgment. As the succession is admitted to be entirely solvent, those parties can not be affected by any change in the judgment appealed from, and hence they are not necessary parties. There is no distribution of funds made in these proceedings.

Second — Because the record was not filed in this court within the legal delay.

It is within the recollection of the Court that an order was granted extending the time to bring up the appeal, and we cannot make the appellants suffer for the omission of the clerk of this Court to do his-duty and make an entry of the order. The authority cited does not apply.

Third — Because the judgment in case of Spyker v. Hart was rendered contradictorily with the administrators and appellants, has the effect of res judieata, and has been acquiesced in by them, placed on the tableau and partly paid.

The alleged payments were made prior to the appeal herein, and do not debar appellants from complaining of the terms of the judgment on the oppositions. They do not deny the verity of the judgment, but complain that they have been ordered to pay it in an illegal manner. They have not acquiesced in or partially paid the judgment from which they have appealed.

Fourth — Because neither in the court a qua nor in this Court is said judgment in favor of Spyker, so allowed, opposed by any person or persons, who have proved themselves to be either heirs or creditors of E. C. Hart, deceased; and because no parties but the administrators have appealed.

This refers to Cornelia Hart, who opposed the said judgment, as-allowed on the account, as widow and tutrix. The objection might avail to dismiss her opposition, but not the appeal taken by the administrators.

The motion to dismiss is overruled.