Succession of Wegmann

On Motion to Dismiss. PROVOSTY, J. Judgment was rendered against the appellant, as dative tutor, ordering him to file an account within 10 days, and in the meantime to either invest or deposit in court the funds he had on hand for the minors, his wards. He apparently did neither, but apparently still had the funds on hand when he submitted his next yearly tutorship account. Thereupon, at the instance of the mother of the minors, the court made an order tliat he deposit said funds in court and from that order he had taken the present appeal. Mrs. Wegmann, the appellee, moves to dismiss the appeal on several grounds, which we ■proceed to consider in regular order. “(1) That proper parties were not made to "the appeal; that Joseph Wegmann, one of the minors in the above matter, was emancipated prior to the judgment appealed from, and should have been made a party to the appeal and cited.” Joseph Wegmann was not a party to the proceeding in the lower court, and therefore did not have to be made a party to the appeal. ‘‘The appellant is not required to look beyond the record and cite, on appeal, persons who were not parties to the -judgment appealed from.” Fish v. Johnson, 16 La. Ann. 29. “(2) That the said. judgment -was signed during vacation, and therefore has never been legally signed, and no appeal will lie until it be signed in term in accordance with the law.” Under Act No. 4, p. 5, of 1896, and the rules of court adopted thereunder, the judgment appealed from could be rendered in vacation, and, being interlocutory, it did not need to be signed. Hen. Dig. p. 23, No. 24; Id. p. 730, No. 10; Code Prac. arts. 538, 546. “(3) That the judgment appealed from merely carries into effect previous judgment rendered June 24, 1901, which has never been appealed.” There can be no doubt of the correctness of this proposition (State v. Judge of Second Judicial Dist. Court, 27 La. Ann. 703; Boutte v. Boutte’s Ex’rs, 30 La. Ann. 180), but nothing shows that it is applicable to the facts of this case. Non constat that the appellant tutor had not already invested the funds when he was thus ordered to deposit them. If so, he was entitled to an appeal from the order to deposit the funds. “(4) That the judgment herein appealed from is to the interest and benefit of the estate of the minors represented by Peter Wegmann, appellant herein, and no appeal will lie from it.” This is a begging of the question. Is the judgment to the interest of the estate of the minors'! Presumably a judgment ordering the funds of a minor out of the hands of the tutor, the legal custodian thereof, is injurious. We pass to another branch of the case. Anna Elizabeth Wegmann, one of the minors, has applied for permission to become a party to the appeal. She alleges that since the appeal was granted she has been emancipated, and she annexes to her application a certified copy of the judgment of emancipa, tion. If it be true that she has been emancipated, the appellee can no longer represent her, and it is proper that she should be permitted to come into the case for the purpose of defending her interests. The power of this court to allow new parties to be made in such cases has heretofore been recognized. Planters’ Bank v. Bass, 2 La. Ann. 430. Appellant resists the application on the ground that he has taken a suspensive appeal from the judgment of emancipation, and that this has had the effect of suspending the effect of the judgment and continuing the incapacity of the minor. The court takes notice that the appeal in question was not filed here in time,' and that it has been on that ground dismissed. ' The appellee Anna Elizabeth Wegmann moves to dismiss the appeal on the following grounds; “(1) That this is an appeal from an inter [934] loeutory order, the execution of which does not work the appellant an irreparable injury.” (May 25, 1903.) This ground is practically the same as ground 4 of the motion to dismiss of the coappellee, Mrs. Wegmann, already disposed of. “(2) That appellant has failed to comply with articles 602 and 603 of the Code of Practice.” “(3) That upon the face of the order appealed from, it appearing that evidence was given in the lower court, the absence of any written evidence, assignment of error, or statement of facts in the transcript works a dismissal of the appeal.” These two grounds had better be considered together. That transcript was filed in this court on the 3d of November, 1902, and the assignment ■of error was filed on the 12th of the same month, or one day before the expiration of the 10 days’ delay allowed by article 897, Code Prac., for the purpose. True, the motion to dismiss had been filed previously, but this makes no difference. State ex rel. Blackman v. Strong, 32 La. Ann. 173. By failure to comply with articles 602 and ■603, Code Prac., is meant that appellant has not brought up the evidence introduced in the ease, nor a statement of facts in the place of it. The answer is that the transcript was made in pursuance of a written agreement specifying what should be included in it, and that it must be accepted by the appellee Anna Elizabeth Wegmann as it is, she having come into the case after the appeal had been lodged in this court. By article 1042, Code Prac., the testimony of witnesses is required to be taken down in writing, and a list of all documentary evidence offered is required to be made, in courts of probate. The presumption is that this law was complied with, and that the evidence was left out of the transcript in pursuance of the said agreement of counsel. The motions to dismiss must be overruled, and it is accordingly so ordered.