
    (74 South. 713)
    No. 22189.
    RUIZ et al. v. PONS.
    (Oct. 16, 1916.
    On the Merits, March 12, 1917.)
    
      (Syllabus by the Court.)
    
    On Motion to Dismiss the Appeal.
    1. Appeal and Error <&wkey;780(2) — Interest in Prosecuting Appeal — Determination.
    When the' question whether an appellant has an interest in prosecuting the appeal depends upon whether the judgment on appeal shall be rendered for or against him, that question cannot be decided on a motion to dismiss the appeal, but belongs to the merits of the case.
    On the Merits.
    2. Insane Persons <&wkey;ll, 44 — Interdiction —Abatement—Dismissal.
    An interdiction suit, being purely personal as to the defendant, is abated if the latter dies before a final judgment is rendered; but, as the account to be rendered by the administrator pro tempore can only be rendered in and through the court that made the appointment, the suit should not be dismissed from the docket of the court until the administrator pro tempore has rendered his account to the representative of the succession of the deceased defendant and is discharged from the trust.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 19, 69, 70.]
    3. Insane Persons t&wkey;28 — Interdiction — Abatement — Oosts.
    The provision of the Civil Code that the costs incurred in an interdiction suit shall be paid by the petitioner if the interdiction shall not bo pronounced has no application to a ease in which the defendant dies before a judgment is rendered. In such case the payment of the costs of the suit is governed by the rule pertaining to the abatement of actions; that is, that, when an action is abated by an event over which neither party had control, no judgment can be rendered, and each party must pay his own costs.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 39-41; Costs, Cent. Dig. § '379.]
    4. Insane Persons (&wkey;28 — Interdiction — Abatement — Costs.
    If the defendant in an interdiction suit dies before a final judgment is rendered, the costs incurred by the defendant or for his or her benefit, such as the compensation to be paid the administrator pro tempore and the latter’s attorneys and the fees of expert witnesses appointed or. employed by or. for the defendant, must be borne by the estate of the defendant.
    [Ed. Note.' — For other cases, see Insane Persons, Cent. Dig. §§ 39-41; Costs, Cent. Dig. § 379.]
    Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.
    Interdiction suit by Mrs. Josephine Pons Ruiz and others against Mrs. Marie N. Pons, widow, in which the defendant’s succession was opened, and in which an attorney who had represented her in the interdiction suit was confirmed and qualified as testamentary executor, and obtained an ex parte order dismissing the suit, and in which the Bank of Orleans, administrator pro tempore for defendant in the interdiction suit, obtained a rule on the testamentary executor and the other attorneys for defendant to show cause why the order dismissing the proceedings should not be rescinded, and in which plaintiffs in the interdiction suit obtained a similar rule on the testamentary executor, and in which the Bank of Orleans filed an account of its administration pro tempore praying
    that it be approved and homologated, and wherein the account was approved and homologated so far as not opposed, and the exception of testamentary executor was overruled, and the rules to show cause why the dismissal of interdiction proceedings should not be rescinded, were dismissed, and the order dismissing the suit was made absolute, and judgment was rendered maintaining the opposition to the account of the administrator pro tempore, and the Bank of Orleans, in its own behalf, and as administrator pro tempore, and Frank N. Butler and others, its attorneys, in their own behalf, appeal.
    Motion to dismiss the appeals overruled, judgment dismissing the interdiction suit annulled, and judgment on the opposition to the final account of the administrator pro tempore amended by increasing the compensation allowed to it and by increasing compensation allowed its attorneys, and costs ordered and decreed, and case remanded.
    Denegre, Leovy & Ghaffe, of New Orleans, for appellants Bank of Orleans, Butler, and Lazarus, Michel & Lazarus. Dart, Kernan & Dart, of New Orleans, for plaintiff appellants. Paul L. Fourehy, of New Orleans, for appellee Pons. .Woodville & Woodville, of New Orleans, for appellee testamentary executor.
   O’NIELL, J.

This case was before the court on an appeal from the judgment refusing to interdict the defendant. The judgment appealed from was set aside, because, although we were not satisfied that the defendant was a proper subject for interdiction at the time the suit was filed, we believed that she was, when the judgment was rendered on appeal, a proper subject for interdiction. The case was therefore remanded in order that the trial judge might then dptermine whether the interdiction should be pronounced. See Pons v. Pons, 137 La. 25, 68 South. 201.

Soon after the judgment of this court became final and the case was reinstated on the docket of the civil district court the defendant died. Her succession was opened in the civil district court, and one of the attorneys who had represented her in the interdiction proceedings was confirmed and qualified as testamentary executor. He and the other attorneys who had represented the defendant as such in the interdiction suit presented a motion to the judge of the civil district court, and, on showing that the defendant had died, obtained an ex parte order dismissing the interdiction suit. Three days thereafter the Bank of Orleans, having been' appointed administrator pro tempore for the defendant in the interdiction suit, filed a petition alleging that the order dismissing the interdiction proceedings had been granted improvidently, and obtained a rule on the testamentary executor and the other attorneys who had represented the defendant in the interdiction suit ordering them to show cause why the order dismissing the proceedings ' should not be rescinded. A few days later the plaintiffs in the interdiction suit obtained a similar rule on the testamentary executor and the other attorneys who had represented the defendant in the interdiction suit ordering them to show cause why the order dismissing the proceedings should not be rescinded. Thereafter the Bank of Orleans filed in the civil district court an account of its administration as administrator pro tempore of the estate of the defendant in the interdiction proceedings, together with a petition praying that notice of the filing of the account be published, that the heirs of the deceased defendant be notified, and that the account be approved and homologated. The testamentary executor filed an opposition to the account, first excepting to the jurisdiction of the court on the ground that the administrator pro tempore had become functus officio by the death of the defendant, and that the account should be rendered to him, the testamentary executor, in the succession proceedings. The account was approved and homologated by the court in so far as it was not opposed. The exception filed by the testamentary executor was overruled. The rules to show cause why the order dismissing the interdiction proceedings should not be rescinded were tried, and judgment was rendered dismissing the rules and making absolute the order dismissing the interdiction suit. On the same day on which that judgment was rendered the district court rendered judgment maintaining in part the oppositions to the account of the administrator pro tempore. The Bank of Orleans, in its own behalf and as administrator pro tempore, and Messrs. Frank N. Butler and Lazarus, Michel & Lazarus, the attorneys of the administrator pro tempore, in their own behalf, appealed from the judgment dismissing the interdiction suit and from the judgment rendered on the oppositions to the account of the administrator pro tempore.

The testamentary executor of the deceased defendant and the other attorneys who had represented her in the interdiction proceedings have filed motions to dismiss the appeals from the judgment dismissing the interdiction proceedings. The motions to dismiss the appeals are founded solely upon the contention that the appellants have no interest in demanding a reversal of the judgment appealed from.

It is not and cannot well he disputed that the appellants have sufficient interest to maintain their appeals from the judgment rendered on the oppositions to the final account of the administrator pro tempore. In order to have the benefit of their appeals from that judgment it was necessary that they should also appeal from the judgment dismissing the interdiction proceedings, because, if they permitted that judgment to become final, it would appear that the proceedings in which they had taken their appeal were, at an end.

When the question whether an appellant has an interest in prosecuting the appeal depends upon whether the judgment on appeal shall be rendered for or against him, that question cannot be decided on a motion to dismiss the appeal, but belongs to the merits of the case.

The motions to dismiss the appeals are overruled.

On the Merits.

The ex parte order dismissing the interdiction suit referred to in the foregoing opinion on the motions to dismiss the appeals was rescinded by the trial judge, and judgment was rendered on a rule nisi dismissing the proceedings at the cost of the plaintiffs in the interdiction suit. From that judgment the plaintiffs have prosecuted an appeal, which has been consolidated with the appeals taken by the administrator pro tempore and the latter’s attorneys. The only part of the judgment rendered on the oppositions to the final account of the administrator pro tempore from which the latter appealed is the reduction of the fee of the administrator pro tempore from $15,000, the amount placed on the account, to $4,000; and the only part of the judgment from which the attorneys of the administrator pro tempore appealed is the reduction of their fee from $15,000, the amount allowed them on the final account, to $2,000. The testamentary executor, in answer to the appeals, prays that the account of the administrator pro tempore be rejected entirely.

The issues presented by the various appeals therefore are as follows, viz.:

First. Whether the trial judge should have dismissed the interdiction suit without first allowing the administrator pro tempore to render an account of its administration and be discharged from the trust.

Second. Whether the costs of the interdiction proceedings, the suit having abated at the death of Mrs. Pons, should be imposed upon the plaintiffs, or each party should bear his or her own costs.

Third. What compensation should be allowed the administrator pro tempore, and what should be allowed the latter’s attorneys for their services respectively?

Opinion.

Before the interdiction proceedings could be terminated and dismissed from the docket of the civil district court, it was necessary that the Bank of Orleans should render an account of its administration as administrator pro tempore of the property and funds of the defendant whose interdiction had been sought. That account could only be rendered in and through the court in which the appointment had been made. If a final judgment had been rendered in favor of the defendant, declaring her sane and rejecting the demand for her interdiction, the account would have been rendered to her. If a final judgment had been rendered against her, pronouncing the interdiction, the account would have been rendered to the curator of the interdict. The interdiction suit abated by the death of the defendant, but it was nevertheless necessary that an account should be rendered by the administrator pro tempore to the heirs or executors of the estate of the defendant. The method of administration and of rendering an account by a curator of an interdicted person is governed by the same rules which govern tutors of minor children; and we think the same rules regarding the rendering of an account must apply to an administrator pro tempore in a suit for interdiction. R. C. C. 415; Interdiction of Onorato, 46 La. Ann. 73, 14 South. 299.

Our conclusion is that an orderly administration of the affairs of the defendant whose interdiction was sought, and of her succession at her death, demanded that the interdiction suit should not have been dismissed until the administrator pro tempore had rendered an account and had been discharged from the trust. Analogous and appropriate rulings on that subject are found in the cases of Gibbs v. Lum & Co., 29 La. Ann. 526; Cawthorn v. Cawthorn, Administrator, 36 La. Ann. 1181; Succession of Melina Webre, 36 La. Ann. 312; and Eby v. McLain, 123 La. 138, 48 South. 772.

As to who should pay the costs of the interdiction proceedings, the appellants concede that the plaintiffs should not be reimbursed any costs paid by them, and that they should bear such costs as they have incurred for stenographer’s fees, etc. Their complaint is that the defendant should bear the costs incurred by her or for her benefit, such as the compensation to be paid the administrator pro tempore and the latter’s attorneys, the fees of expert witnesses employed by the defendant, etc.

Article 397 of the Civil Code provides that the costs of an interdiction suit shall be borne by the interdict if the defendant be interdicted, and by the petitioner if the interdiction prayed for be not pronounced.

The executor of the estate of the deceased defendant in this case demands a strict construction and application of that article of the Code; and the district judge has so interpreted and applied it.

Our conclusion is that the framers of the Code intended that a petitioner for interdiction should pay the costs of the suit if a final judgment should be rendered refusing to pronounce the interdiction, but that they did not contemplate, or intend to provide for, a ease where the interdiction suit would abate by the death of the defendant whose interdiction was sought. Hence we are of the opinion that the disposition of the costs in this case must be governed by the fact that the defendant died before a final judgment was rendered for or against her, rather than by the fact that it was an interdiction suit. Article 551 of the Code of Practice provides that the costs of any lawsuit are due to the party in whose favor the judgment has been rendered, whether the court rendering the judgment has or has not decreed that the party east should pay the costs.

When an action that is purely personal to one of the parties is abated by his death, no judgment can be rendered for or against the survivor, and there is no decree on which to base the costs of the suit. An interdiction suit, being purely personal as to the defendant, is abated if the defendant dies before a final judgment is rendered, and the payment of the costs of the suit is governed by the rules pertaining to the abatement of actions. That is what this court decided in Re Jones, 117 La. 106, 41 South. 431, where the defendant against whom a judgment of interdiction was pronounced died pending his appeal from the judgment of interdiction. It was held that, the suit having abated by the death of the appellant, no judgment could be rendered except to dismiss the appeal, and that each party to the suit should pay his own costs. The same rule, regarding the payment of costs, was applied in the case of Doss et al. v. Board of Commissioners, 117 La. 450, 41 South. 720, in which the only question involved was the constitutionality vel non of a statute of this state, and the statute in question was repealed by an act of the Legislature pending the appeal from the judgment of the district court. It was held that the action abated by the repeal of the statute attacked, and that each party to the suit should pay his own costs. In fact, the rule that each party to a suit that is abated by an event over which neither party had control must pay his own costs appears to be universally recognized. See list of decisions cited in 11 Cyc. 69 and 70. Our conclusion is that the costs incurred by or for the benefit of the defendant in the interdiction proceedings, such as the compensation to be paid the administrator pro tempore and the latter’s attorneys and the fees of expert witnesses appointed or employed by or for the defendant, must be borne by the estate of the defendant.

The compensation to be allowed the administrator pro tempore and the latter’s attorneys is not fixed by statute, but must be determined by the court from the various elements of the employment, such as the responsibility incurred and the skill and volume of the work done. The services rendered in this case extended over a period of two years, nine months, and seventeen days. That is much longer than the law contemplates that an administrator pro tempore should have to serve. The inventory of the estate of the defendant amounted to nearly $350,000, consisting principally Of real estate that was heavily mortgaged, and on which rents amounting to more than $61,000 were collected and disbursed by the administrator pro tempore under orders of the court during the administration. The administrator pro tempore succeeded in avoiding a foreclosure of a mortgage of $80,000 on one piece of property belonging to the estate during the administration, and thereby rendered a valuable service. Several bankers testified that the compensation demanded by the administrator pro tempore was fair and reasonable, and several lawyers testified that the compensation demanded by the attorneys for the administrator pro tempore was not unreasonable.

It would serve no useful purpose to incumber the report of this opinion with a review of the voluminous mass of evidence pertaining to the compensation to be allowed the administrator pro tempore and to the latter’s attorneys. Our conclusion is that the compensation allowed by the district judge is inadequate, but that the amount demanded is somewhat excessive. We have concluded from all of the evidence in the case that the administrator pro tempore should be allowed $10,000, and that the attorneys for the administrator pro tempore should be allowed $5,000 as compensation for the services rendered by them, respectively.

For the reasons assigned, the judgment dismissing the interdiction suit is annulled. The judgment on the oppositions to the final account of the administrator pro tempore is amended by increasing the compensation allowed the administrator pro tempore from $4,000 to $10,000, and by increasing the compensation allowed the attorneys for the administrator pro tempore from $2,000 to $5,000. It is further ordered, adjudged, and decreed that, as the interdiction suit abated at the death of the defendant, each party thereto shall bear his or her own costs, and that the costs incurred by or for-the benefit of the defendant, such as the compensation allowed the administrator pro tempore and the latter’s attorneys, the fees of expert witnesses appointed or employed for or by the defendant, be borne by her estate. The case is therefore remanded to the civil district court to be proceeded with and disposed of accordingly.  