Succession of Magi

107 La. 208

• Court: Supreme Court of Louisiana
• Decided: November 15, 1901
• Docket: No. 13,853
• Status: Published

Opinions

On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Monroe, J.

The executor of Jayme Magi filed his final account from which it appeared that, after payment of all debts, there would be a balance of property to be divided between Mrs. Josephine Magi, widow and legatee; Mrs. Marie Tranchemer, daughter; Marietta, and James, Magi, children of a predeceased son; and the succession of Fernand Magi, a son who survived the decedent and, dying subsequently, who is here represented by his executors. After the homologation of said account, Mrs. Magi and Mrs. Tranchemer filed a petition alleging that they desired a partition of said property, that they had received $300, and $210, respectively, and that Fernand Magi .had received $1,811, and that said amounts should be collated, and praying for an inventory and for judgment, etc. An inventory was accordingly taken, and, after hearing, there was judgment ordering the sale of the property included therein and a partition of the proceeds among the parties litigant in proportion to their respective interests, as determined by said judgment, and further ordering that the plaintiffs and the Succession of Fernand Magi collate the amounts as claimed in the petition. From this judgment, the executors oij Fernand Magi have appealed, and the plaintiffs, through their counsel, move to dismiss said appeal.

In their application for the appeal, the executors say “there is “manifest error to the prejudice of the movers in, and they are “ aggrieved by, the final judgment, herein rendered * * * against “ them * * * in the sum of $1,811, with accruing interest apd “ costs,”, etc., wherefore they have appealed.

The motion to dismiss, upon the .other hand, is based on the ground, as stated in said motion, “that this court has no jurisdiction ratione " materiae, in this, that appellants have acquiesced, in their answer “ and their appeal, in the entire demand of the plaintiffs except as to “ the amount of $1,811, which is the only amount or question in con- “ troversy between appellants and appellees, which amount being less “ than the lower limit of the jurisdiction of this Honorable Court, said “ appeal should be dismissed.”

According to the inventory, the property to be divided is valued at $8,950.43, and this, we think, constitutes a fund to be distributed within the meaning of Article 85 of the Constitution, which reads: “ The Supreme Court, except as hereinafter provided, shall have appellate jurisdiction only, which jurisdiction shall extend to all cases “ where the matter in dispute, or the fund to be distributed, whatever “may be the amount therein cláimed, shall exceed two thousand dollars, exclusive of interest.”

It is true that the appellants acquiesced in the demand for the partition, .and in all ether demands made by the plaintiffs, except that for the collation of $1,811 by the Succession of Fernand Magi. And, by their failure and refusal to acquiesce in that respect, they are in the attitude of claiming $1,811 from the fund, amounting to over $8,000, which is to be distributed, whilst the other parties litigant are in the attitude -of resisting said claim. Under these circumstances, we think it clear, according to the language of the Constitution, that, notwithstanding that “the amount therein doomed” 'is less 'than $2,000, the jurisdiction of this court attaches, because the fund in which, or against which, the claim is made, exceeds that amount. Renshaw vs. Stafford, 34 Ann. 1140; Hamilton vs. Creditors, 51 Ann. 1043.

The motion to dismiss the appeal is, therefore, denied.