Succession of Pons

On Motion to Dismiss Appeal. LAND, J. It appears from the record that on April 19, 1916, the judge a quo entered an order that all the funds and assets of the succession of Mrs. Pons be deposited in the Bank of Orleans, and that on June 26, 1916, after hearing the rules of the executor and other parties for the transfer of said funds and assets to the Metropolitan Bank, the judge on his own motion rendered a judgment dismissing said rules, with costs; and further ordering that the funds and assets aforesaid then on deposit with the Bank of Orleans be removed therefrom and turned ovexto the clerk of the civil district court, on the order of the executor, by said clerk to be placed in the judicial depositary of said court, to wit, the Metropolitan Bank, there to remain until paid out, or removed, on the further orders of the court. In the same judgment the court further ox-dered that said order of April 19, 1916, be annulled and set aside, in so far as it directed the deposit of said succession funds and assets with said Bank of Orleans, and that all arrangements between the parties regarding such deposit with said bank on its payment of 3 per cent, interest be avoided and annulled. It is to be noted that the order of June 19, 1916, is a repetition of a similar order rendered by Judge Skinner on February 10, 1916. By the terms of the judgment, the demands of the Bank of Orleans were dismissed, but its claims as a creditor, with privilege or pledge on said funds or assets, was not to be affected by the decree. On the motion of the Bank of Orleans, an order for an appeal was granted as follows: “It is ordered that a suspensive appeal be granted to said movers, the Bank of Orleans as administrator pro tempore of Mrs. M. M. Pons, and individually, and Lazarus, Michel, and Lazaras and Prank N. Butler, returnable to the Supreme Court of the state of Louisiana on the 31st day of August, 1916, upon movers furnishing good bond and security conditioned as the law directs and provides in the sum of $71,000, the amount on deposit of funds belonging to said estate and costs.” The Bank of Orleans furnished an appeal bond in the sum of $71,000, with the United States Fidelity & Guaranty Company as surety thereon. [1] The testamentary executor has filed a motion to dismiss this appeal on three grounds, which may be briefly stated as follows: Because the judgment or order appealed from is an interlocutory one, rendered ex proprio motu by the judge. Because the amount of cash in said Bank of Orleans belonging to said estate is $70,515.02, plus interest on daily balances, and also two negotiable mortgage notes each for the sum of $40,000, and said bank has no right of appeal. Because the law provides and fixes the bond at one-half over and above the amount in said bank, which would make the bond over $200,000. The third ground for dismissal is without merit. In all cases where the judgment is not for a “specific sum,” the judge fixes the amount of bond. C. P. 574, 575. The second ground states no legal reason for dismissal, and the averment therein that the “bank has no right of appeal” may be considered in connection with the first ground that “the judgment or order is an interlocutory one.” An appeal will lie from an interlocutory judgment when such judgment may cause an irreparable injury. C. P. 566. In Succession of Hart, 127 La. 833, 54 South. 46, this court held that a judicial depositary holding property “subject to the further orders of the court” has no standing to contést the validity of ah order of the court [335] for the delivery of the deposit to another depositary. But in the present case, the appellant bank contends that, under previous orders of the same court, it had acquired certain legal rights over said funds of such a nature that their divestiture may cause said bank an irreparable injury. The record facts relative to this contention may be briefly stated as follows: The Bank of Orleans held recorded claims against the succession of Pons, aggregating about $65,000. After the sale of all the immovables of the estate, the executor filed a. rule against all the parties in interest to cancel their inscriptions from the record. The bank during the pendency of the rule “suggested its intention to ask bond from the testamentary executor, in accordance with law,” and “the parties having suggested and agreed that in lieu of asking for a bond, which would incur additional expenses to the estate, it would be agreeable to deposit the proceeds of sale in the official account * * * of the testamentary executor in the said Bank of Orleans.” The court thereupon ordered the testamentary executor to continue to deposit in the Bank of Orleans all cash and notes that may come into his hands, “the same to be paid out or withdrawn by the said testamentary executor only upon the order of court after notice to H. P. Dart, attorney for Mrs. Ruiz, Mrs. A. Veasey, Mrs. George Louque, Mrs. Blanche Louque, and Walter Pons, five of the heirs of decedent, and to said Bank of Orleans, the said account to bear 3 per cent, interest per annum on daily cash balances.” The executor, Fourchy, and several creditors, subsequently filed rules for the' transfer of the funds and assets of the succession from the Bank of Orleans to the Metropolitan Bank. These rules were dismissed, with costs, as were also the demands of the Bank of Orleans in return to said rules; and the judge below by virtue of his supervisory authority over the administration of the estate, after dismissing all the litigants from the proceeding “of its own motion,” proceeded to render the judgment of June 26, 1916, which was duly signed on June 30, 1916. The judge treated the order or decree of April 19, 1916, as an absolute nullity, because “it was based on an agreement between the testamentary executor and the Bank of Orleans, which they were without capacity to make, and which is binding neither on the court, nor on the creditors of the estate.” Our learned brother, however, recognized the legal right of the Bank of Orleans to an appeal from his ruling. Whether the decree of June 19, 1916, was an absolute nullity is a question on which the appellant has a right to be heard, and one which we cannot decide on a motion to dismiss. The judgment below deprived the appellant of a valuable security for his large claims against the estate. As stated supra the order or decree of April 19, 1916, was a duplicate of a similar order rendered on February 10, 1916. In other words, the bank permitted the executor to administer the large estate without bond on the faith of the validity of these orders. There is nothing in the record to suggest that the security of the deposits once lost can be replaced by the bond of the executor for some $80,000, or for any other considerable amount. If the judgment below is executed, we know of no subsequent proceeding in the succession in which it can be brought up for review on appeal as an interlocutory order. One of the “demands” in the answer to the rule sued out by Fourchy, the executor, is that, under the facts and circumstances of the case, no order should be entered by the court authorizing said executor to remove [337] said funds from the Bank of Orleans, unless accompanied by an order of the court directing said Fourchy to give bond according to law in favor of said bank, which prayed that “should the court order the transfer of funds from respondent bank, that said Fourchy, executor, be ordered to furnish bond in favor of the respondent as required by law in the sum of not less than $65,000.” The judgment below dismissed this demand, with costs. A number of cases in our reports show that the Supreme Court has exercised jurisdiction, where the rights of creditors, under O. O. 1677, to require bond of executors, has been involved. See notes under article 1677, Merrick’s Civil Code (Second Edition). It is therefore ordered that the motion to dismiss be overruled.