On Motion to Dismiss Appeal.
O’NIELL, J.
Pasquale Papalia died during the pendency of these executory proceedings against Mm. His widow in community was served with the notice to pay, and she enjoined the sale of the property on several grounds. On a rule obtained by the plaintiff in the executory proceedings, the writ of injunction was dissolved, and the widow has appealed from the judgment dissolving the injunction.
[1] .The plaintiff, appellee, has moved to dismiss the appeal on three grounds. The first is that the widow in community has no interest in the community property as the succession of her deceased husband is insolvent, and that therefore she has no right to this appeal. The question thus presented cannot be considered on a motion to dismiss the appeal, because it is one of the issues to be considered and decided on the appeal. State ex rel. Duffel v. Marks, 30 La. Ann. 70; Baker v. Frellsen, 32 La. Ann. 822; Dardenne v. Schwing, 111 La. 318, 35 South. 583. One of the grounds on which the writ of injunction was obtained was that the widow had not been granted the delay allowed by law for deciding whether she would accept or renounce the succession as surviving partner in community. The writ of injunction was dissolved on the face of the pleadings, and we cannot, on the motion to dismiss the appeal, decide that the succession of Pasquale Papalia is insolvent and that his widow has no interest herein.
[2] The second ground of the motion to dismiss the appeal is that the transcript is incomplete, in that it does not contain the petition for the order of seizure and sale. Our answer to that complaint is that, if the appellee desired to have Ms petition embodied in the transcript, his remedy was to give instructions to the clerk of the civil district court. Brown v. Staples, 138 La. 602, 70 South. 529; Act No. 229 of 1910.
[3] The third ground on which the appellee moves to dismiss the appeal is that the appeal bond is not sufficient. As the judgment appealed from did not condemn the appellant to pay a sum of money, the law required that the district judge should determine and fix the amount of the appeal bond. The appellant furnished a bond for the sum fixed by the trial judge, and that is all the law required of her. See Levert v. Moore Planting Co., 133 La. 591, 63 South. 198.
The motion to dismiss the appeal is denied.
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