Succession of Bougére

On Motion to Dismiss. Ludeling, C. J. The appellee moves to dismiss the appeals in this ease, on the grounds following, to wit: First — That the appellants have voluntarily executed the judgment appealed from, and have voluntarily acquiesced in and ratified its execution, as .per affidavit and exhibits annexed to and made part of this motion. Second — That all the parties, contradictorily with whom the judgment ■was rendered, had not been made parties to the appeal, and have not 'been cited. Third — That the claim of Aehille Bougere, Marguerite Bougere, and [744] Elie Bougere, has been settled since the appeal was granted, as per affidavit and exhibits hereunto annexed. Fourth — That the appeal was granted to Achille Bougere, Marguerite Bougere, and Elie Bougere upon the condition that they should furnish bond and security in the sum of two hundred and fifty dollars; that they never furnished such bond, but settled their claim and acquiesced in the judgment. Fifth — That the appeal taken by Pelagie Mariette, wife of Cerisior, Zénide Gauthier, wife of H. Jordan, and Josephine Desportes, wife of Pierre Peirault, who all reside in France, should bo dismissed, because their husbands are not in court, have not joined in said appeals, and there is no evidence of record indicating that said appellants are acting with the assistance of their said husbands or of the court. Sixth — That the appeal of Mrs. Julie Boe should bo dismissed, because she can not appeal from a judgment of the honorable the Supreme Court of the State already rendered in this suit heretofore, by which it was finally decided that she is without interest or capacity to stand in judgment in this succession. The executor rendered an account, which was homologated. In it he had made a distribution or partition of the property among the legatees, after paying creditors. Some time after this judgment Élio, Marguerite, and Achille Bougere obtained an order for a suspensive appeal, but they subsequently received from the executor their shares or amounts adjudged to them by the judgment; others of the heirs or legatees also received their shares under the judgment. The heirs were all parties to the judgment, and they know that the executor had boon ordered to pay the creditors and legatees, and after the judgment had been to a great extent executed they should not bo allowed to appeal from a judgment which they have permitted to be executed. In the succession of Egana this court said: “ It can not be controverted that, under the laws and jurisprudence of this State, the party who voluntarily executes, either partially or in toto, a judgment rendered for or against him, or who voluntarily acquiesces in or ratifies, either partially or in loto, the execution of that judgment, is not permitted to appeal from it.” 18 An. 62, and. cases there cited. This judgment is an entirety, and it has been acquiesced in and partially executed. As to Mrs. Boé, this court decided in a ease reported in 26 An. p. 127, that she had no standing in court. The proceeding in the Second District Court of New Orleans, in which she was recognized as presumptive heir, was unauthorized, as the person, whose heir she claimed to be, never resided in this State and never owned any property in it. It is therefore ordered that the appeal be dismissed with costs. [745] Mr. Justice Wyly concurs in this opinion as relates to the appeal oí Mrs. Boé, and dissents as to the rest. MORGAN, J. I concur with reference to the acquiescence, but I dissent as to the decree as it affects Mrs. Boé, and will file my reasons hereafter.