J. U. & H. M. Payne & Co. v. Dejean

Orr MotioN to Dismiss. The opinion of the Court was delivered by . Bermudez, C. J. The plaintiffs and appellees move to dismiss the devolutive appeal taken by the defendant, in her official capacity, from a judgment amending an account of administration presented by her, by which she was charged with more than she accounted for, and was denied the entirety of a personal claim which she had set up against the estate. The first part of the judgment increasing the assets directhj, was in favor of the succession, and one of which she, as administratrix, had no right to complain. The second point of the judgment likewise increased the assets of the succession individually by reducing her claim. It went against her individually, and was not, therefore, against the succession. By thus increasing the amount of funds on hand the,estate was benefited, and not injured. It is only where a judgment is rendered by which a succession can be aggrieved, that a succession represent ative can, in his official capacity, appeal from the same. The only reason which justifies the granting of an appeal is, that the party appellant considers that the judgment aggrieves him. How could the administratrix complain that the judgment in question, which benefits the succession,' aggrieves it ? An administrator cannot be permitted to use his official capacity for his individual advantage where he is personally the only one aggrieved. In such a case he does not represent the mass, and should appeal in his individual name. This was not done in the present instance. The [891] appeal, even devolutive, is inoperative, and should be dismissed. 5 R. 140; 1 E. 275 ; 1 A. 21; 12 A. 774; 11 A. 177 ; 26 A. 385. It is therefore ordered that the appeal in this case be dismissed with costs. Mr. Justice Fenner recuses himself on the ground of affinity.