
    Bates et ux v. Weathersby et al.
    A party who had obtained an order allowing him .an appeal, on discovering that several de.fendants had not "been made parties, presented a second petition, .and obtained a second order of appeal, embracing all the parties. A transcript having .been sent up .under each .order, by amagreement of counsel the first appeal was dismissed Held, that .the court below was not divested of jurisdiction by the first order of appeal, it having been irregularly obtained; and that the second appeal cannot be dismissed on the ground tba,t a previous appeal had been abandoned.
    Where one of the defendants in an action for the partition of a succession dies while the case is pending in the court of the first instance, and it is afterwards decided without his heirs having boen made parties, the appeal will not be dismissed, but.the.case will.b.e .remanded, that the heirs may be made parties to the action. C. P. 120.
    
      Appeal from the Court of Probates of Livingston, Watts, J.
    
      Waiterston aud Winter, for the plaintiffs. Baylies, for the appellants.
   The judgment of the court was pronounced by

King, J.

The appellees have moved to dismiss this appeal, on 1he ground that it was granted while another was pending in the same cause, which has since been abandoned, and because all the parties to the suit in the pourt below have not been made parties to the appeal.

In the first petition presented for an appeal, the appellants omitted to make several of the defendants parties. Upon discovering this error a second petition was presented, which embraced all the parties, and on this a second order of appeal was granted. The clerk prepared and sent up a transcript under ■each order. By ,an agreementof counsel on file the first appeal was dismissed. It was irregularly taken, and the inferior court had not, by the first order given, divested itself of jurisdiction of the eause, but still retained full authority to grant a second order, which would be available to the parties, and enable them to be heard in this court.

The fact relied on in support of the second ground, does not, in our opinion, authorise the dismissal of the appeal, but requires that the cause be remanded, During the pendency of the action in the court below, one of the parties, Lodwick L. Weathersby died. No notice appears to have been taken of the fact, and the cause was tried and decided without citing his heirs, who have neither been made parties to the proceedings below., nor to this appeal. This is clearly irregular. The suit is for a partition, and the validity of certain testamentary dispositions are brought in question. The interests of the heirs of the deceased must necessarily be affected by the result, and no final judgment can be rendered until they are made parties. 3 La. 524, 442. C. P. art. 120.

It is therefore ordered that the judgment of the court below be reversed, .and that the cause be remanded, with instructions to the judge not to proceed ■to trial until the heirs of Lodwick L. Weathersby be made parties to the suit; the appellees paying the .costs of this appeal.  