
    HODGE'S HEIRS vs. DURNFORD'S CURATOR.
    EASTERN DlST.
    February, 1837.
    ArFEAL FROM THE COURT OF PROBATES FOR THE' PARISH AND CITY OF NEW-ORLEANS.
    An interlocutory judgment of the Court of Probates, ordering a curator to account, may be relieved against, on appeal from such final judgment as may be rendered, and does not work an irreparable injury; it therefore cannot be appealed from.
    This is an application for a mandamus, commanding the • judge of probates to grant an appeal from an interlocutory judgment, ordering the curator of Durnford’s estate to render an account.
    The plaintiffs allege, that David Hodge, their ancestor, died in Louisiana, in 1791, leaving a very large estate,, consisting of real and personal property, and a will, by which he bequeathed the whole of it to his brothers and sisters, and their decendants in Scotland, and England, and constituted Thomas Durnford, of New-Orleans, and others, testamentary executors. Durnford, by appointment of the other executors, took upon himself the administration of the succession, as sole executor.
    That after many and repeated applications through agents, the plaintiffs, and those in whose rights they now appear, succeeded in compelling the said executor to render an account, which was defective and unsatisfactory, and many exceptions filed thereto. They pray that said Durnford be cited to answer, and pay over such sums as may be in his hands on settlement, and that he deliver up all the books, vouchers, &c. . This suit was filed in 1823."
    The defendant denied the capacity of the plaintiffs to sue as heirs of Hodge, and pleaded prescription. It was further denied that Durnford ever accepted the trust of executor, as alleged, and that the succession of Hodge was opened under a foreign government, and that this court was never seized, and could not take cognizance of it.
    
      Duraford died while these proceedings were going on, and John M'Donough was appointed curator of his vacant estate. The judge of probates ordered that the curator should file, an account of the administration of said Duraford, within a fortnight from the notification of this order.
    The curator prayed an appeal from this order, which was refused by the judge.
    
      Grymes, for the curator,
    moved for a rule to show cause why a mandamus should not issue, commanding the judge of probates to grant an appeal.
    The judge gave as his reasons for refusing the appeal, “ that all the points in controversy between the parties not being decreed, the judgment rendered, and from which the appeal is prayed, is merely interlocutory, and cannot be appealed from. Code of Practice, 539. It does not cause an irreparable injury, and the party can have the benefit of his exception to it on a final judgment.
    
      Grymes and Strawbridge, supported the motion on the ground,
    that from the gre,at lapse of time since Duraford undertook the executorship of Hodge’s estate, it was impossible for his curator to make out and file an account; that while the order stood, he was compelled to do it, or submit to imprisonment. In this respect the injury would be irreparable.
    
      D. Seghers, on behalf of the judge in showing cause,
    maintained that the judgment intended to be appealed from, was not definitive. Code of Practice, 539, 567. ,
    
      %. That it does not cause an irreparable injury to the party seeking to appeal. Ibid. 566.
    3. The judgment is only interlocutory, and does not authorize an appeal. Ibid. 538.
   Martin, J.,

delivered the opinion of the court.

To a rule to show cause why a mandamus should not issue to the judge of the Court of Probates of the parish of New-Orleans, commanding him to allow an appeal in this case, Jhe answered, “ that the judgment intended to be appealed from is not definitive. Code of Practice, 539, 565. That the judgment does not cause irreparable injury to the party wishing to appeal it. Code of Practice, 566. That the judgment is only interlocutory. Code of Practice, 538. The whole more fully appearing by an annexed certified copy of the judgment of the court, refusing the appeal.” The judgment appealed from, orders the curator to file into court within a fortnight, an account of the administration of Durnford, as the testamentary executor of plaintiffs’ ancestor.

An interlocutory judgment of the Court of Probates, ordering a curator to account, may be relieved against, on appeal from such final judgment as may be rendered, and does not work an irreparable injury; it therefore cannot be appealed from.

The defendant’s counsel has contended that this is an extreme case, Durnford having entered on the execution of the will long before the cession of this country'to the United States; the succession of Hodge having never been opened in any court of the territorial or state government; the, executor having died several years ago, and his curator being without the means of presenting the account required, and being, consequently, liable to imprisonment, unless relieved by this court. The succession of Durnford appears to have been opened in the Court of Probates for the parish of New-Orleans, and it is from the funds of that succession that the plaintiffs seek compensation for the injury alleged to have been done to them by the neglect of the executor to account. It matters not, therefore, whether any court of the late territory, or of this state, was ever seized of the testamentaria of their ancestor.

The judgment is certainly an interlocutory one, from which no appeal lies, unless it works an irreparable injury ; that is to say, such an injury, which, on an appeal from the final judgment in the cause, cannot be relieved against by this court. We must presume that the Court of Probates will be satisfied with such an account as the curator is- able to render under all the circumstances of this case. If, on such an account being rendered, the court proceeds to give an erroneous judgment, the path to redress is clear. We are aware of the difficulty attending the rendering, contesting and settling long and intricate accounts, of several years standing, and of the utility of avoiding all those difficulties, when the rendition of such accounts cannot be legally claimed. But the case would be worse, if those who are entitled to demand such accounts could be delayed by an appeal, especially in the western part of the state, until their demands were fairly established in this court, and the case returned to the lower court for the rendition of the account. The rule must, therefore, be discharged.  