
    No. 7242.
    James H. West vs. P. E. Davis and Widow H. Kuntz.
    A minor lieir, on arriving at his majority, cannot, by appeal, obtain the reversal of a'judgment rendered agaiust the succession of his father, and which the executor of that succession allowed to become final by not appealing.
    APPEAL from the Second Judicial District Court, Parish of Jefferson. Pardee, J.
    
      li. King Cutler, W. J. MeGune and W. B. Lancaster, for Plaintiff and Appellant.
    
      Brauglm, Buelc & .Dinkclspiel, for Defendants and Appellees:
    The benefits of Art 593, C. P , that the delays for appeal as regards minors, “must be computed from the day of their coming of age,” cannot be extended to a suit where the minor seeking to appeal, had, or has only a residuary interest as heir in a succession party to such suit, represented by a testamentary executor. 12 It. 323.
    “ This Court cannot amend the judgment between appellees; nor can an appellee obtain any relief on the appeal prosecuted by some other party to the suit.” 20 An. 121; 10 An. 288.
   On Motion to Dismiss.

The opinion of the Court, was delivered by

White, J.

It is moved to dismiss this appeal on the following grounds: 1. Want of proper parties to the appeal. 2. Errors in the transcript. 3. That the appeal was taken after the legal delays. The motions were made after the three days, and are hence not in time. Of course, the denial of the motions will not preclude us from ascertaining when the case is before us on its merits, whether the necessary parties to justify a decree have been made, whether there is an appeal, as also whether the transcript is so defective as to preclude the formation of a conclusion. We cannot now pass upon these questions, owing to the tardiness in filing the motions; they are therefore denied.

On the Merits.

Poci-ié, J.

This suit was instituted in January, 1867, with the object of annulling’ the sale under executory process, of a piece of landed property belonging to plaintiff', seized by the defendant Davis, and adjudicated to his co-defendant, Mrs. Kuntz.

At the death of West, in September, 1867, his widow was qualified as testamentary executrix of his succession, and in said capacity, she became plaintiff in the suit, and judgment was rendered against her in December, 1868.

This appeal was taken from said judgment in May, 1878, by I-Ienry West, who alleged in a petition of appeal, that he was one of the children of the deceased J. H. West, and that he had reached his age of majority on the 29th of May, 1877, or less than one year previous to his application for an appeal in the case.

Under the decree rendered on appellee’s motion to dismiss this appeal, by our immediate predecessors, who overruled said motion, the right of' this Court to examine into the validity of this ajipeal was specially reserved.

We shall now proceed to tost the right of the present appellant to maintain his appeal, taken nearly ten years after the rendition of the judgment which he seeks to reverse.

The pleadings and the record show that the succession of the deceased, who had left three children and a surviving widow in community, rvas under administration, and was fully and legally represented herein by the widow in her recognized capacity of testamentary executrix; and that the succession of the father was, and could only bo accepted with benefit of inventory by his minor children, who had only a residuary interest in his succession.

Hence, it follows that those heirs, if even of age at the time of the rendition of the judgment, could not have stood in judgment in the name of the succession thus represented and administered. It is, therefore, clear, that subsequently, in May, 1878, the present appellant, who had acquired no greater rights in and to the succession, and to this specific property, alleged to belong to the succession, could not, in his own right, represent the succession, or his co-heirs, yet minors, in moving for this appeal, and that the proceedings instituted by him alone, with a view to reverse the judgment rendered against the succession, duly represented, could not prevent the judgment of the District Court from becoming final against the succession, whose legal representative had failed to take an appeal within one year after the rendition of the judgment. Audat, curatrix, vs. Lutey, curator, 12 R. 325; Préjean vs. Robin, curator, 14 A. 788.

The right conferred by Art. 593, Code of Practice, to minors to appeal from judgments in which they are interested, within one year after the day of their becoming of age, does not contemplate the exercise of such right by the minor heir of a succession under administration, and duly represented by an administrator or executor, and when the latter acquiesced in the judgment, or took no appeal within the time prescribed by law.

We, therefore, hold that the judgment appealed from had become final against the succession of James H. West, when this appellant obtained his order of.appeal, which is, therefore, an absolute nullity.

It is, therefore, ordered, that the appeal be dismissed at appellant’s csots.  