Succession of Huxen

On Motion to Dismiss Appeal. MONROE, C. J. This case comes up on appeal by the administratrix of the above-entitled. succession from a judgment maintaining an opposition to her account, filed by II. T. Cottam & Co., Limited, which judgment recognizes that firm as entitled to be paid the sum. of $219 “with preference and priority over others,” as balance due, on account for “goods and merchandise” alleged to have been sold to the deceased. The appeal was first taken to the Court of Appeal, parish of Orleans, but appears to have been transferred, by order of that tribunal, to this court, upon its appearing that the ¿mount to be' distributed, as shown by the inventory of the succession, exceeds $2,000. Opponent moves to dismiss the appeal upon various .grounds which will be considered in the order in which they are stated in the motion, to wit: [1] 1. That the Court of Appeal is without authority to order the transfer for the reason that Act 19 of 1912,. which “pretends to confer that power,” is “in derogation of the Constitution”; also that, “in providing .for" the' transfer of appeals, (it)” limits 'the transfer by or to. “any of the Courts of Appeal -throughout' the' state.” The position seems, therefore, to be, on the one hand, that-the act “pretends” to confer the power in question to the Court of Appeal for the parish of Orleans, and, on the other, that it docs not so pretend, but limits the power to-the “Courts of Appeal throughout the state,”' which term, it is said, does not include the Court of Appeal for the parish of Orleans. Thus the statement included in the motion reads: “Articles 98 and 99 of the Constitution, in creating the Courts of Appeal throughout the state, describe them as the Courts of Appeal, and then, in this connection, describe the Court of Appeal for the parish of Orleans. Throughout these articles, article 100 and subsequent, articles of the Constitution, this latter tribunal is thus described. It would therefore appear that Act 19 of 1912, by its failure to describe the Court of Appeal for the parish of Orleans, does not include it, and only applies to the other Courts of Appeal throughout the state.” If the premises stated in the foregoing quotation were well founded, the conclusion drawn therefrom would have a better support; but in that case, the framers of the Constitution of 1S9S would appear to have created a Court of Appeal for the parish of Orleans without conferring upon it any jurisdiction ratione materUe, save of appeals from the “city courts,” and the judges who have presided in that tribunal during the past 20 years, the members of this court who have reviewed, and the litigants who have been affected by, their judgments, would find occasion for serious reflection.' There are, however, some errors in the statement which make a difference in the result. Articles 9S and 99 create no Courts of Appeal; -they merely, “except as otherwise provided” in (the Constitution), confer jurisdiction upon the “Courts of Appeal,” in which article S4 declares that the judicial power shall be, in .part, vested, and under the title “Courts and Officers of the Parish of Orleans.” article 181 et seq. create, and make .certain provisions concerning, “a Court of Appeal [65] for the parish of Orleans,” but make no other provisions as to its jurisdiction than that “after August 1, 1900, in addition to those from the parish of Orleans, all appeals within its jurisdiction from the parishes of Jefferson, St. Charles, Plaquemines, and St. Bernard stall b'e returned to said court,” and that “it shall hereafter have appellate jurisdiction from the city courts of New Orleans,"’ etc. It is said that the General Assembly could not, by Act 19 of 1912, confer upon the Court of Appeal (for the parish of Orleans) a “concurrent jurisdiction over . the transfer of causes with the' Supreme Court.” The answer is that it does not purport tó do so; it provides, to the contrary, that, where an appeal is returned to one of those courts, which is properly cognizable in the other, the court to which it is returned shall order its transfer to the court in which the jurisdiction is vested, but that the question' of jurisdiction is to be determined in the last resort by the Supreme Court. [2] 2. The second ground relied on is that the transcript is incomplete, in that there has been omitted a motion filed by the appellee in the Court of Appeal to dismiss the appeal for lack of jurisdiction, as we understand, in that court; and in support of that ground it is said that the appellant then contended that the jurisdiction was vested in the Court of Appeal, and not in the Supreme Court, and that, the Court of Appeal having ordered the transfer of the case instead of dismissing the appeal, appellee, in an application for rehearing, contended that the jurisdiction was vested in that, court. The argument seems to be that the appellant is bound by the original contention (in opposition to appellees’ motion to dismiss the appeal to the Court of Appeal), but that appellee is not bound by its contention that the Court of Appeal was without jurisdiction.; and, though it was successful, and appellant unsuccessful, on that issue, it can now assume the reverse position, but that the mouth of the appellant is closed. We are of opinion that it is rather the other way, and that appellant, having accepted the adverse ruling of the Court of Appeal, as she was obliged to do, is entitled to claim whatever benefit there is to be derived from it, and that appellees, having. contended in the Court of Appeal that the appeal should be dismissed or- transferred to this court, is not logically in a position to assert the. contrary in this court. The motion filed in the Court of Appeal, however, formed nd part of the record, a transcript of which was . required for the purpose of the appeal, and, if it had, its-absence from the transcript would not authorize the dismissal of- the -appeal. The party who needs it is at liberty to produce it. Act 229 of 1910, p. 3SS. The question whether this court is vested with jurisdiction of the appeal is to be determined by (he circumstances disclosed by the transcript, rather than by the. allegations .of .the litirgants. Wunderlich v. New Orleans R. & L. Co., 143 La. 626, 79 South. 80. It appears from the transcript in this case that.the property of the succession was valued on the inventory at $4,578.93, and, as the appellate jurisdiction is governed by the amount tó be distributed, we can discover no reason at present why that jurisdiction is not vested in this court. [3] 3. It is said that the transcript was not filed in this court within a reasonable time. The order transferring the case became final on May 6, 1918, and the transcript was lodged in this court on July 6 following.' The General Assembly has seen fit to declare (Act 106 of 190S) that appeals shall be made returnable in all cases, civil and criminal, “in not less than .15 nor more than 60 days," but, as Act 19 .of 1912 does not fix the time when the transcript in ease® transferred shall be lodged in the court ad quern, the [67] question which arises in a particular case of that kind is whether the delay has been reasonable or unreasonable, and we do not find in this case that it has been unreasonable. [4] 4. It is said , that the order of appeal fails to identify the judgment appealed from. The motion for the appeal bears the number and title of the succession, fully describes the judgment, and the order is included in, and made part of, the motion, the whole bearing the signature of the judge. [5] 5. The next ground relied on is that the (amount of the appeal) bond should have been fixed by the judge, and was not so fixed. The judgment recognizes plaintiff as a preferred creditor of the succession for $219, with interest from May 29, 1915, and orders that the administratrix amend her account accordingly. She gave bond for a suspensive appeal in the sum of $400. This court has, no doubt, held that, where in such case an administratrix gives a bond for costs in an amount fixed by the judge, it will suffice for the purposes of the appeal, but it seems safe to say that no c¿se can bq found in which the appeal has been dismissed because an administrator gave bond in an amount exceeding by one-half the amount of the judgment, where the judgment was for a specific sum; nor do we see any reason, from any point of view, why such an appeal should be dismissed, since Act.45 of 1890, p. 38, amending and re-enacting article 575 of the Code of Practice, declares that, where the judgment is for a specific sum (and other conditions are complied with), its execution may be stayed, “provided the appellant gives his obligation with good and solvent surety,” etc., “in a sum exceeding by one-half the amount for which the judgment was given,” and, where, as in this case, the judge orders that the appeal be granted upon the appellant’s furnishing bond, with good and solvent surety according to law, he thereby fixes the amount of the bond. If, however, he does not, and there is error in the amount of the bond for that or any other reason, the case falls under the dominion of Act 112 of 1916, and, in the absence of any attempt on the part of the appellee to have the error corrected, the bond, as given, must stand. White v. Maison Blanche Co. et al., 142 La. 265, 76 South. 708. We therefore conclude that the grounds upon which the motion to dismiss is based are not well taken, and the motion is overruled. PROVOSTY, X, absent on account of illness, takes no part.