
    SUCCESSION OF Dorothey DePasquale BERTOLINO. In re DESERT PALACE, INC. v. SUCCESSION OF Dorothey DePasquale BERTOLINO.
    No. 83 C 570.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 18, 1983.
    
      Lanny R. Zatzkis, Lynne W. Wasserman, New Orleans, for relator.
    Richard J. McGinity, New Orleans, for respondent.
    Before BOUTALL, KLIEBERT and GRISBAUM, JJ.
   KLIEBERT, Judge.

This matter comes before us on application for Writs of Review, Certiorari and Mandamus brought on behalf of Desert Palace, Inc. from the trial judge’s denial of a motion to consolidate and the upholding of the succession’s exception of no right or cause of action.

The relator, Desert Palace, Inc., pursuant to the provisions of La.C.C.P. Article 3241, filed a proof of claim with the succession representative asserting an indebtedness due to it of $750,000.00 represented by three checks of the decedent. Relator then filed a motion to traverse the inventory showing assets valued at $457,300.00 filed by the succession representative. In response, the succession representative filed an exception of no right or cause of action grounded in the contention the claimant was not an “interested party” within the meaning of La.C.C.P. Article 3137. This article provides in pertinent part as follows:

“... any interested person may traverse the descriptive list at any time, on contradictory motion served on the person filing it...”

The trial on the motions and exceptions was set for July 1,1983. On June 30,1983, the relator filed an ordinary suit seeking a money judgment for the $750,000.00 indebtedness set out in the proof of claim. Apparently, this petition had not been served on the succession representative at the time of the hearing. On July 15, 1983, the trial judge rendered judgment upholding the exception of no right or cause of action and denying the motion to compel discovery.

The relator properly submitted his proof of claim to the succession representative as required by La.C.C.P. Article 3241. Under the provisions of La.C.C.P. Article 3242, if the executor fails to take action on the claim within thirty days, the claim is considered rejected. Then, the claimant is entitled to enforce his claim judicially, La.C. C.P. Article 3246.

At the time of the hearing, the claimant was entitled to and was judicially seeking to enforce his claim and, as such, was an “interested party” within the meaning of La.C.C.P. Article 3137. Accordingly, the trial judge’s judgment denying the relator’s motion to compel discovery and upholding the succession representative’s exception of no right and no cause of action is set aside, and he is instructed to permit discovery and proceed with the motion to traverse the inventory in accordance with the views herein expressed.

REVERSED AND REMANDED.  