Livingston v. White

The judgmant-of the-court was pronounced by Slidell, J. This transcript, and the proceedings exhibited by it, are extremely,confused. The transcript is entitled and¡endorsed as the case of Aaron Livingston v. Joseph A. White and others. The proper title would seem to be, Succession of JoJm T. White, or Joseph A. White and others v. Aaron Livingston, Administrator. It is evident that there have been antecedent proceedings ¡which have not been comprehended in the transcript, and this omission has-tended to-incrense the perplexity. The transcript commences with a statement of debts presented by Livingston, as administrator, and a petition for its homologation. There are various motions to dismiss, .which, after a careful examination of the transcript, we are compelled to sustain. Aaron Livingston is one of the appellants. There were two distinct judgments rendered. Gne was upon a classified statement of debts,¡filed by Livingston, as administrator. The.other was ¡upon an account of his administration, filed by him. The appellant, Livingston, moved for an appeal, by a motion in writing, signed by his attorney.. In this motion he prayed for “ an appeal from the judgment.rendered on the trial of the opposition to¡the statement of debts in said estate,” and also prayed “ that the amount of a devolutive appeal bond may be fixed for said appeal.” At the foot of this written application isa memorandum, signed by tho-judge : “Bond fixed at $200.” There is also an entry on the minutes stating that a motion for appeal was granted, but not stating who made the motion. The entry would seem, from the context, to refer to other parties. The only bond filed by Livingston, is a bond in favor of Joseph A. White, which recites that, “.whereas the above bounden Aaron'Livingston has appealed from a certain judgment rendered against him in the Court of Probates for the parish of Morehouse, in the case of Joseph A. White v. Aaron Livingston, Administrator, on opposition .to account,” &c. There is then a .written application by Livingston for an appeal from the judgment upon the .statement of debts, and an appeal bond as in case of appeal from the judgment ■upon the account. The argument presented by the appellant is, “that the judgment upon the account and the statement of debts were both rendered on ■the same "day, and that the clevis, it appears, has not mentioned in the bond the [903] judgment on tlie statement of debts, which is a mere clerical error, though the motion for appeal asks for an appeal from th® judgment rendered on the trial of the opposition to the statement of debt's.” We find nothing in the transcript to establish that the discrepancy between the application and order and the bond, is attributable to the fault of the clerk, nor are we aware of any provision of law which makes it the duty of the clerk to prepare the bond of appeal, so as to bring the inequality in that respect witbing the statute of 1839. We are unable to relieve the appellant, and the motion to dismiss must prevail. There is an appeal bond given by A. D. Peck, but we find no order authorising him to appeal. The motion must- also prevail as to him. So also as to Charles Perkins, who has given no appeal bond. The remaining appellants are David, White, McMoy, and Joseph A. White. The-two former claim as creditors, the later as heir. The claims of the two former were opposed, and were rejected by tlie judgment’of the court below. ¥e find no evidence sustaining their claims as creditors, and they are consequently not before us as parties in interest entitled to prosecute an appeal. Nor does-the transcript contain any evidence establishing the right of Joseph A. White as heir, which, in proceedings of this nature, so far as the proceedings are shown by the transcript, he was bound to establish. It is always with reluctance that we dismiss appeals;- but the application to dismiss is insisted upon, and we cannot refuse it without establishing a precedent which would lead to extreme irregularity and embarrassment. Appeat dismissed'L