Succession of Fortier

— 1564 — The opinion of the court on motion to dismiss was delivered by Nicholls, O. J., and on the merits by Watkins, J. On Motion to Dismiss. Nicholls, 0. J. Angela Fortier, widow of Placide Bienvenu, died in the city of New Orleans on the 8th of April, 1896. On the 11th of that month Frank Zengel, Public Administrator for the Parish of Orleans, alleging that fact, and averring that she died intestate, leaving no heirs, but a vacant estate consisting of movables and immovables, and that it was his duty in his capacity as Public Administrator, to administer said succession as an administration of the same was necessary, prayed that seals be affixed upon the assets of the estate, that an inventory be made, and that in due course he be authorized to take the administration of the succession. The usual order was given; the seals affixed; the inventory made, and in due course Zengel was authorized to administer the succession. On the 27th of May, 1898, Delphine Fortier filed a petition in the Civil District Court, in which, after reciting the death of Angela For-tier, that she had died intestate, and leaving no ascendants or descendants, averred that she was the niece of the deceased and her only heir. That she was the daughter of Edmond Gustave Fortier, a natural brother of the deceased, and the issue of the union of her said father with Caroline Delzay, petitioner’s mother; that her father and mother lived publicly together as man and wife prior to petitioner’s birth, and •continued to live in the common dwelling, long after her birth and until 1862, when her father died; that her father always treated her mother as his wife, both in public and private; that he paid for petitioner’s education, maintenance and support, and both in public and private openly treated petitioner as his daughter; that he often de•clared by writings executed by his own hand that he acknowledged her as his daughter, designating her expressly by name.. She averred that she was entitled to be recognized judicially by the court as the descendant of Edmond Gustave Fortier, the natural brother of the deceased, to the extent that she might be able to establish her right to the estate of her deceased aunt and obtain possession •of same. That an inventory of the property of the succession had been taken, — 1565 — showing property of the estimated ■ value of twenty-four thousand and seventy-two dollars, and that the public administrator was in charge of said estate. That there was no need any longer of administration as the debts had all been paid. She prayed that the public administrator and the attorney of absent heirs be cited; that after due proceedings she be decreed to be and recognized as the only child and daughter of Edmond Gustave For-tier, the natural brother of Angela Fortier, widow of Placide Bienvenu, and, as the descendant of said natural brother of the deceased, be decreed to be her sole and only heir; and entitled to the whole of her succession. That the public administrator be ordered to file an account of his administration and to turn over to petitioner in her capacity as sole and only heir of the deceased, the residue of her estate, after payment of the debts and necessary expenses. The public administrator filed a provisional account of his administration on September 13th, 1898. On September 26th, 1898, this account was homologated so far as not opposed. The District Court rendered judgment recognizing Delphine For-tier as the sole heir of Felicie Angela Fortier, widow of Placide Bienvenu, and decreeing that as such she be recognized as the owner and placed in possession of all the property movable and immovable, and effects of said deceased, particularly the property which was mentioned in the judgment. This judgment was rendered on the 13th of November, 1898.' Un February 9th, 1899, on motion of M. ,T. Cunningham, Attorney General, representing the State of Louisiana, and on his suggesting that the succession of Angela Fortier, widow of Placide Bienvenu, was a vacant estate falling to the State of Louisiana, for the benefit of the school fund; that said estate consisted of movables and immovables, but mostly of immovables, as appeared on the inventory; that there were no heirs capable of inheriting said succession; that the estate should have been adjudged to have fallen to the State of Louisiana; that Delphine Fortier was only the illegitimate and unacknowledged child of Edmond Gustave Fortier, a brother of deceased ; that there was therefore error to the prejudice of the State in the final judgment rendered on November 28th, 1898, recognizing said — 1566 — Delphine Fortier, as the heir of the deceased, and putting her in possession of the property; that there was likewise error to the prejudice • of the State in the final judgment signed September 26th, 1898, homologating the account filed by the public administrator; it was •ordered that an appeal be granted the State from both of said judgments, the one signed September 13th, 1898, and the other signed November 28th, 1898, returnable to the Supreme Court of the State, •on the third Monday of February, 1899. Appellee moved to dismiss the appeal for the reasons: “1st. That the certificate of the clerk of the Civil District Court .and the record showed that the transcript does not contain all docu.menits filed herein; that the certificate shows that the transcript was made pursuant to an order of the Attorney General, as would appear ■ on page 115 thereof, which shows that “all little rules at the bottom •of package can be left out;” thus showing a diminution of record at :the instance of appellant. 2nd. There was error in the appellant ordering the clerk of the ‘Civil District Court to embody in the transcript any evidence, documents or proceedings, that occurrred after the judgment appealed from was rendered; or which were not introduced and filed in evidence -at the trial of the cause that culminated in the judgment appealed from, and consequently there should be stricken from the record all ■proceedings and documents in the matter of Estelle Fortier, widow of Darius Demazilliere, against appellee, herein embodied in the transcript. Pages 96 to 314. That for the same reason there should be stricken out of the •transcript “the. four records in valut in this matter” which attorney for appellant wrongfully assumes properly belongs to No. 18,976, •2nd District Court, (“Trans. 115”), and consequently Records No. ;56,388 and 56,399,. which have been wrongfully embodied in the Transcript from page 325 to 343, should be stricken out, because said ■records were never introduced and filed in evidence in this case as appears per note of evidence, page 43 of the Transcript, it appearing ■only that Record No. 38,976 of the Second District Court was offered in evidence. That appellant, being a third party appealing, had no right after -judgment to introduce new evidence. 3rd. The State of Louisiana is without any interest herein. .It cannot collaterally attack by appeal as a third person; the judg — 1567 — ment recognizing- the stains of appellee. The said judgment not having been suspensively appealed from, has become final and ex-ecutory, and cannot bo disturbed by a devolutive appeal, and an attack on the same, and on the capacity of appellee as niece of the deceased, ■ can only be brought by a relation and not by the State of Louisiana. 4th. The State of Louisiana was apprised long prior to the rendition of the judgment appealed from, through its proper officer, of the pendency oi the suit which appellee had instituted herein, as fully appears per statements of the Attorney General and of the attorney of the public administrator annexed to appellee’s motion. Subsequent to said notice and knowledge the judgment was obtained contradictorily against the public administrator and attorney of absent heirs, and the State of Louisiana, on account of her laches in not seasonably intervening- or taking a suspensivo appeal from the judgment, is concluded by same and is estopped to question by a devolutive appeal the .judicial acknowledgement of appellee as niece of the decedent. 5th. The motion of appeal shows no cause of action; said motion .and the order of the Attorney General to the clerk of the Civil District Court admit that appellee is a daughter of Edmond Gustave For-tier, a brother of decedent herein, and said judicial recognition on the part of the State bars recovery. To permit such au attack as herein attempted would be against public policy; especially as it appears that rights of third parties have accrued since the final judgment.” Whether a particular record presents sufficient data upon which an appellate court would be justified in avoiding or amending a judgment below, can only be shown after it shall have heard the contention of the parties and made an examination of the transcript filed. Insufficiency of the transcript may furnish ground for dismissal of an appeal after hearing on the merits, but not on a motion to dismiss in limine. (Brown vs. Land Co., 49 Ann., 1738.) The improper insertion in the transcript of appeal of documents and proceedings not filed in evidence on the trial of the cause or of proceedings which occurred after the rendition of the judgment appealed from, furnishes ground for ignoring or rejecting the same, but ■not for dismissing the appeal. An appeal from a judgment by a third person legally entitled to an appeal therefrom as aggrieved thereby, is not a collateral attack upon -it. — 1568 — It is a direct method of reviewing the judgment authorized by law. (Succession of Haley, 49th Ann., 1718). The best and most appropriate time for us to examine into and' pass upon the effect of a third person’s having in his motion for an appeal made admissions as to the status of the appellee which go to sustain the judgment of the District Court or upon the effect of such third person’s having applied for and obtained a dovolutive, instead of a suspensive appeal, or to his having a right of appeal at all, will be after the hearing of the cause. If the effect of such acts is to bar an appeal or a recovery as claimed by the appellee, we will so announce on the final disposition of the-cause. We are reluctant to dispose in limine of the rights of parties on questions of law, raised on motions to dismiss. This statement covers the attempt to have the appeal dismissed upon the ground that no one but a relation can question the legal right of the appellee to have inherited from the deceased, Angela For-tier, and that the State has no legal interest entitling it to appeal. The succession of Angela Fortier was opened as a vacant succession and went as such under the administration of the public administrator. It. closed under a judgment recognizing a certain party as an irregular heir and as such entitled to receive all of its property. To the proceedings leading up to the recognition of this party as an irregular heir and altering the status of the succession from a vacant to an irregular succession, neither the State nor the school board was made party. The State claims that the succession is in fact a vacant succession, and that by reason of that fact it had legal rights in the premises of which it could not be'deprived by what quoad it were ex parte proceedings. These are legal questions which we prefer to hear fully argued on the merits by the parties claiming rights. We are of the opinion, for the reasons assigned, that the motion to dismiss in limine should be denied and it is so ordered without prejudice. Monroe, I., takes no part, as he was not a member of the court when the case was submitted.