State ex rel. Upton v. Lazarus

The opinion of the Court was delivered by Bermudez, C. J. This is an application for a mandamus to compel the granting of a suspensive appeal. The relator claims to be the attorney, appointed by the court, to-represent the absent heirs of one Fischer. He avers that an application having been made for the sale of all1 the succession property, he opposed it, as unnecessary; but that, his opposition having been discharged and the sale ordered, he applied fora suspensive appeal, tendering a proper bond ; that the same was refused him. He therefore invokes the intervention of this Court to secure such appeal. The district judge returns, denying that the relator is the attorney for the absent heirs of Fischer, and justifying the correctness of the-judgment discharging the oppositions and decreeing the sale. The record of the mortuoria shows that the relator was appointed attorney for absent heirs on the 17th of April, 1884, and that the opposition to the sale prayed for by the Public Administrator was filed by [831] him, in that capacity. The entry on tlie minutes and the judgment show that he officiated as such attorney at the trial of the opposition,, and that, in as many words, the court ordered that the opposition filed by him, naming Mm, be dis charged. , But the district judge says, that on the 22 d of March, 1878, another' attorney had been appointed to tlie absent heirs, and that on the 17th, of April, 1884, when the relator was appointed, the first order of ap-pointment had not been cancelled. The relator was appointed on the petition of the widow of the deceased, averring a state of facts and concluding with a prayer for the appointment of an attorney for absent heirs. It may well be that tlie district judge thought that, under the circumscances stated, another attorney should be appointed in place of' the former one, and that be acted accordingly. The last appointment impliedly revoked the previous one, as there could be appointed only one attorny to the absent heirs of the deceased. The district judge is presumed to have then done bis duty. He subsequently, at the trial of tlie opposition to the sale, recognized and treated the relator as attorney for absent heirs. It is difficult to perceive how he can presently dispute that capacity. It is immaterial, under tlie actual phase of the controversey, to deter nine whether the district judge decided or not correctly. That question will come, up on tlie appeal to dissolve. The only question to he solved is, whether tlie order of sale which lie made and which lias the form and substance of a final judgment, contradictorily rendered and signed, is or not appealable. Tiiis judgment belongs to the class of those, tlie execution of which can cause irreparable injury. It orders tlie sale of property exceeding in value two thousand dollars, and is supensively appealable. State ex rel. Fassman, 22 Ann. 200; Const., art. 81; 36 Ann. 887. It. is therefore ordered that the alternative mandamus herein issued be made peremptory and tlie restraining order perpetuated.