Boutté v. Executors of Boutté

The opinion of the court on the motion to dismiss was delivered by Spencer, J., and on the merits by Manning, C. J. On Motion to Dismiss. Spencer, J. Plaintiffs, as heirs of Charles P. Boutté, brought this-suit against certain of their co-heirs, and against the executors of Frangois P. Boutté, for partition of certain property in New Orleans, owned one third by Charles P. Boutté and two thirds by Frangois P. Boutté. The widow and heirs of Frangois P. Boutté were not cited or made-parties to this suit. On fifth August, 1875, judgment was rendered decreeing a sale of the property and partition of the proceeds. On fourth of December,, 1875, the property was sold by Guinault, auctioneer, and purchased by Mrs. Anais Berens. The executors of Frangois P. Boutte refused to give possession to the purchaser, and she thereupon took a rule on the auctioneer to show cause why he should not put her in possession. This rule was made absolute on fourth February, 1876. The executors still-refusing, she proceeded against them for contempt, but they were discharged by the court. Thereupon the purchaser, Mrs. Berens, took a. rule on them to show cause why the sheriff should not put her in possession. This rule was made absolute, and the sheriff ordered to put her in possession, by decree of date May 25,1876. On thirty-first May, 1876, the executors of Frangois P. Boutté, his widow and heirs, by motion in open court took a suspensive appeal from* this order or decree of twenty-fifth May, 1876, directing the sheriff to-put Mrs. Berens in possession, and gave bond for $10,000, the amount-fixed by the court. On twenty-ninth July, 1876, the same parties (executors, widow and heirs of Frangois P. Boutté), by petition, took a devolutive appeal from the judgment of partition of date August 5, 1876, and also from the-decree on rule against the auctioneer, of date February 4,1876, and gave bond. Other appeals or motions for appeal are in the record, but seem to have never been perfected by the parties asking them, and need not be further considered. We have then before us— First — A suspensive appeal from the judgment of twenty-fifth May, 1876, on rule against the executors of Frangois P. Boutté, taken by motion in open court. Second — A devolutive appeal from the judgment of fifth August, 1875, decreeing sale and partition. Appeal taken by petition. [179] Third — A devolutivo appeal, by same petition, from the decree of fourth February, 1876, on rule against the auctioneer. Mrs. Berens has filed motion to dismiss all these appeals, on grounds some of which will be hereafter stated. We shall dispose of the three in inverse order, beginning with the third one, the appeal from the decree against the auctioneer. It was taken by petition. We find no bond of appeal. This third appeal was obtained by the same petition arid order as the second above named, ■but the appeal bond only mentions the judgment of partition of fifth August, 1876. It does not cover the decree of fourth February, 1876. The appeal so far as relates to this decree of fourth February against the auctioneer must therefore be dismised. The second appeal, as above stated, is taken from the judgment rendered fifth August-, 1875, ordering sale and partition, in this suit of “ Celina Boutté et al. vs. Executors of Frangois P. Boutte.” Mrs. Berens was no party to that suit in the court below. She can not therefore be cited and made parly appellee in this court. She was improperly cited, and not being a party to the appeal, she has no right to move its dismissal, except so far as to have herself dismissed as improperly made a party. See 21 An. p. 117, Succession of Tyson. It is therefore unnecessary to consider the various objections urged, by her to appellants’ appeal from this judgment of fifth August, 1875. She is not in a position to urge them, and is not legally before this court. A person not a party to the record below, may be an appellant but never an appellee. The first appeal above stated, to wit: That from the decree on the rule against the executors of Frangois P. Boutté, ordering the sheriff to put Mrs. Berens in possession, was taken by motion in open court by the executors of Frangois P. Boutté, who were parties in the court below, and by the widow and heirs of same, who toere not parties in the court below. We see no reason for doubting the right of the widow and heirs, alleging injury to themselves from the order or decree of twenty-fifth May directing the putting in possession of Mrs. Berens, to appeal therefrom. The executors, in proceedings affecting the title or possession of the real estate, do not necessarily represent the widow in community and heirs at law. The conditions of the appeal bond are in accordance with the Code. Art. 579. But the executors seem to us to stand in a different position. We agree with the counsel for Mrs. Berens, that for them the right of appeal from said order did not exist. They were parties defendant in the partition suit, wherein was rendered a decree directing the sale of the property. If they desired to prevent the execution of that judgment they should have appealed suspensively from it. [180] They saw proper not to do so, and have taken only a devolutive appeal, which left the judgment, so far as they are concerned, executory. The mandate of the court for the sale accordingly issued, the property was sold, and adjudicated to Mrs. Borens. The decree or order directing her to be put into possession was only one step more in execution of the original judgment. It is therefore ordered, first, that the motion to dismiss the appeal from judgment of twenty-fifth May, 1876, bo overruled as to the widow and heirs of F. P. Boutté; and sustained so far as his executors are appellants. These executors, however, are ex necessitate appellees in the appeal taken by the widow and heirs. The appeal having been taken by motion in open court, and the bond being in favor of the clerk, all parties to the record not appellants are appellees. Second, that the motion of Mrs. Berens to dismiss the appeal taken from the judgment of partition of date August 5,1875, be disregarded and overruled, she not being a party thereto. Third, that the motion to dismiss the appeal from decree of fourth February, 1876, directing the auctioneer to put Mrs. Berens in possession, be sustained, and the appeal dismissed. On Motion or Celina Boutté to Dismiss Appeal. The record in this case is very voluminous — unnecessarily so. It is confused. There are no le«s than thirty parties to it; and not less than six appeals, or attempts at appeals embraced within it. But as we stated in the opinion rendered on the motion of Mrs. Berens to dismiss, there are but three appeals before us, to wit: First — That from the order directing the auctioneer to put Mrs. Berens in possession, of date February 4, 1876. Second — That from the order of twenty-fifth May, 1876, directing the civil sheriff to put Mrs. Berens in possession. Third — That from judgment of partition of date August 5,1875. In the opinion heretofore rendered we overlooked the motion of Mrs. Celina Boutté to dismiss. She adopts the objections of Mrs. Berens. We have already dismissed the appeal first above described. We have already considered the objections of Mrs. Berens to the second appeal, and as Mrs. Boutté urges and can urge none others than those of Mrs. Berens, it is unnecessary to refer again to this second appeal. But Mrs. Boutté occupies a different position from Mrs. Berens as to the above named third appeal. She is a party to it. Mrs. Berens was not. We must therefore consider the objections, which we declined to do for Mrs. Berens. First — It is objected that Lucette Aleix is not authorized by her husband to take this appeal. The petition of appeal is that of the wife and of the husband. He joins her in it and this is sufficient. [181] Second — It is further objected that the executors of Charles P. Boutté are not cited as appellees. They were not parties below. Nor is the executor a necessary party to a suit for partition of an estate. Third — The petition of appeal does not set out the names of all the appellees. It asks that all the parties to the suit be cited. Id cerium est quid redire cerium potest. They were all cited. Fourth — The judgment of partition appealed from was signed Aug. 5,1875. The petition of appeal was filed twenty-ninth July, 1876, appeal granted and order signed August 1,1876, and bond filed August 3,1876. The citations were served after the expiration of the year. The order of appeal was granted, and bond filed within the' year. This suffices,-10 L. 150. The motion to dismiss is overruled.