Succession of Henry

45 La. Ann. 156

• Court: Supreme Court of Louisiana
• Decided: January 15, 1893
• Docket: NO. 11,091
• Status: Published

Opinions

On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Fenner, J.

The motion to dismiss is based on two grounds.

1. That the appeal bond is insufficient in amount.

2. That the amount in dispute, or fund to be distributed, is beneath the lower limit of this court’s jurisdiction.

The first point has no merit, and as it is not alluded to in movers’ brief we assume that it is abandoned.

The second is equally without merit. The appeal is from a judgment on an opposition to an account which proposed the dis-distribution of a fund exceeding $60,000.

The account exhibited privileged charges aggregating about $9000, one item for which was $5000 to the succession attorneys. The account specifically recited that the Whitney National Bank, as junior mortgage creditor, was bound to contribute from the proceeds attributable to its mortgage the .whole of the privileged debts after first applying to said debts the proceeds of sale of certain furniture, leaving a balance of $5978.76 to be contributed by the bank.

The Whitney Bank filed timely opposition to the account, specially opposing the privileged allowance of $5000 attorney’s fees as excessive, and also opposing, on that ground, the amount of the contribution claimed from it, and prayed for an amendment reducing the attorney’s fees to $2500, and reducing the amount of its contribution accordingly.

Subsequently the bank consented to the payment of $2500 to the attorneys, both parties reserving their respective rights as to the remaining $2500 to be decided by the court under the pending opposition.

Under this reservation the opposition went to trial and decision, resulting in a judgment dismissing it, maintaining the attorney’s fees at the full sum of $5000, and maintaining the contribution required from the Whitney Bank as stated on the account.

Irrespective of subsequent dealings with the “fund to be distributed,” the case clearly exhibits a “matter in dispute” exceeding $2000 and falls under that branch of our appellate jurisdiction.

Motion to dismiss denied.