Succession of Baumgarden

On Motion to Dismiss. The opinion of the Court was delivered by Boché, J. This record presents two appeals taken by Charles Kmumel and Charles Zimmerman, as executors of the last will of the deceased, and by Charles Zimmerman, as tutor of the minor Lilly Baumgarden. The first is a devohitive appeal taken from a judgment of the lower court placing the three heirs of age in possession of their shares of the succession, rendered on the 2()th of February, 1882, and the other, a suspensive appeal'taken from a judgment rendered on the 30th of March of the same year, dismissing an action instituted on the 24th of February, 1882, by the same parties in the same capacities, for the nullity of the judgment, rendered on the 20th of that month. The motion to dismiss both appeals urges several grounds, which we shall consider in their order: I. That appellants have failed to show any appealable interest in the premises, and have no authority to appeal in their alleged capacities. The record shows that Kummel and Zimmerman, who were appointed. as executors by the deceased in her will, had been qualified as such when the order of February 20th, 1882, was rendered. As executors it was their right and their duty to take charge of the property of the succession and to proceed in the execution of the testator’s will, and as such they had the undoubted power to prosecute an appeal from a judgment purporting to disturb their possession and control of the estate. It is not sound to argue in support of this motion that the order of February 20th vacated their functions. This is the very question for solution under the appeal. There is no force in the position of appellees that Charles Zimmerman has acquiesced in the judg [129] ment putting the heirs in possession, by taking possession of a piece of property which liad been bequeathed to him by the testatrix. He was put in possession under a separate and distinct proceeding instituted by himself, for the purpose of enforcing his rights as legatee. Succession of McKenna, 23 An. 370. II. That the appeals wfere not filed in time, appellants having failed to furnish the bonds required of them by the order of appeal rendered below on the 0th of April, 1882. The record shows in this connection that appellants had applied for suspensive appeals from both judgments rendered in the premises; that the Judge had refused a suspensive and granted only a devolutive appeal from the judgment of February 30th, 1882, and had granted a suspensive appeal from the other judgment; making both returnable on the 3d Monday of April following, and fixing the amount of the bonds at $150 each, and that appellants furnished their bond in the suspensive appeal on the 10th of that month. It appears further, that on proper showing made before this Court, on the 19th of April, on the 3d of May and on the 17th of May, additional delays were given to file the transcript of appeal “ in the succession of Theresa Baumgarden,” the last of which expired on the 18th of June, 1882, and the transcript was filed on the 16th of that month. These facts certainly save thesuspensive appeal: that which was taken from the decree dismissing the action in nullity of the judgment of February 20th, 1882. As these two judgments are ingredients or steps forming part of the proceedings looking to the settlement of the succession, we construe the various motions made by appellants for extension of delays, as applying to and including both appeals. The fact that the appeal bond in the devolutive appeal was furnished only on the 11th of May, the order having been made on the 6th of April previous, is explained to our satisfaction by the following circumstances and incidents: Believing that there was error to their prejudice in the Judge’s refusal of a suspensive appeal from his judgment placing the heirs in possession, appellants applied for relief by mandamus and prohibition to this Court, and under the effect of the alternative writ of prohibition, matters were kept in abeyance and suspense, until our opinion, which is reported in 34 An. page 654, was rendered. Hence, we conceive that their appeal bond was furnished in time, and we therefore hold that the devolutive appeal was not presented too late. [130] iii. The objection that neither of the appeal bonds is sufficiently identified with either of the judgments is answered by the mere reading of the bonds, which show clearly that the bond furnished on the 10th of April refers to the suspensive appeal, and that the bond of May 11th covers the devolutive appeal. IV. Having recognized the right of appeal of Hummel and Zimmerman in their respective capacities, we see no force in the objection that they should have executed their bonds in their individual capacity and not as executors and as tutor. V. The objection that the amount of each of the bonds is insufficient, is answered by our jurisprudence, which has settled that in such cases the appellant, in furnishing his bond in the amount fixed by the court, satisfies the requirements of the law. Elder vs. New Orleans, 31 An. 500. VI. Several months after filing a motion to dismiss these appeals, on the grounds which we have just disposed of, appellees presented an additional motion, urging the want of service of citation of appeal, and that, therefore, the proper parties were not before the court. In urging this ground they manifestly lose sight of their own previous appearance by which they had made themselves parties. After appearance by appellees it is too late to complain of want of citation. This is a self-evident proposition needing no argument in its support. Foote vs. City of New Orleans, 20 An. 22; Lee vs. Goodrich, 21 An. 278; Jones vs. Shreveport, 28 An. 835. The motions to dismiss are, therefore, overruled.