Succession of Hoyle

On Motion to Dismiss Appeal. MONROE, J. It appears from the record in this case that upon July 2, 1901, Mrs. Laura R. Eiler filed a petition in the civil district court alleging the death of her husband, Robert L. Hoyle, upon the 28th of the preceding month, and praying for an inventory, and for confirmation as natural tutrix of the minor children, issue of the marriage. This application, in so far as related to the tutorship, was opposed by the father of the applicant, and the opposition was dismissed by judgment rendered August 20, and signed August 27, 1901. Another opposition was, however, filed to the same effect, and after hearing there was judgment maintaining the same, and appointing the opponent tutor of his grandchildren. This judgment was rendered September 9, 1901, and signed the next day, and the widow and mother obtained a devolutive appeal therefrom by motion, and without citation, February 2, 1902. The appellee moves to dismiss on the ground that the appeal, not having been taken during the term at which the judgment was rendered, should have been taken by petition, and that he should have been cited. Act No. 4 of 1806 is an act to fix and regulate the terms of the civil district court, and provides: “That the said court shall be opened at 11 o’clock a. m., and shall remain open until 3 o’clock p. m., unless business assigned for the day be earlier concluded, from the 15th day of October to the end of the month of June, in each year, except from Christmas to the 2d of January. For granting interlocutory orders, issuing any and all writs, trials of rules to quash same, and not upon merits, and for the purpose of trying proceedings instituted, or on appeal therein, by a landlord, for the possession of leased property, partition proceedings, and for such special probate and insolvency business as the court, en banc may, by rule, determine, said court shall remain open on all legal days during the whole year,” etc. Article 136 of the Constitution provides that: “The judges of said civil district court shall be authorized to adopt rules, not in conflict with law, regulating the allotment, assignment and disposition of cases, the order in which they shall be tried and the proceedings in such trials,” etc. From the brief of appellant’s counsel it appears that, according to a rule adopted after the Constitution went into effect, the civil district court is open all the year for the trial, among other things, of oppositions to [625] the appointment of tutors; and, though the rules are not in evidence, nevertheless, as such a rule is authorized by the constitution, and is not in conflict with the statute, it cannot he said, in the absence of affirmative evidence to that effect, that the appeal herein was granted at a term different from that at which the judgment was rendered; and the motion to dismiss is accordingly denied. (Jan. 19, 1903.)