
    No. 8542.
    Henry Renshaw vs. G. W. Stafford, Executor. R. P. Hunter, Third Opponent.
    The third opponent claiming $1000 out of a larger fund to be distributed by the executor, this court has jurisdiction. 1
    The professional services rendered in the premises by the third opponent, were in fact against the interests of the succession from which he claims payment of his fee. He is, therefore, not entitled to it.
    APPEAL from the Twelfth District Court, Parish of Rapides. Harbin, J.
    
      T. L. Bayne, Henry BensJiaw Jr., J. G. White and B. J. Boivman, for Plaintiff and Appellant:
    "Whether this case be viewed as coming under the clause in the Constitution of 1879 of “ the matter in dispute,” or under the clause of “the fund to be distributed,” the plaintiff’s right of appeal is clear.
    1.If it he regarded as falling under the clause of “the matter in dispute,” ibis settled beyond controversy that it is the plaintiff’s demand that is the matter iu dispute, and not the demand of third opponent. 31 An. 452; 30 An 623 ; 2 An. 190 ; 8 L. 167; 11 L. 462.
    2.The Convention incorporated this clause from the Constitutions of 1808,1852. 1845 and 1812, with a full knowledge of this construction of that clause, and sanctioned it hy adopting it without change.
    3.If it be viewed as coming under the clause “ the fund to be distributed,” whatever be tbe amount therein claimed, it is the amount of the fund to be distributed, and not the amount claimed by the opponent, that determines the jurisdiction.
    4.The amount in dispute, or the amount of the fund to be distributed, give distinct and separate rights of appeal, and one cannot be made to infringe or cut off the right granted by the other.
    On the Merits
    5.The suit of Rensliaw vs. Stafford, Executor, et als., was a revocatory action. 6 An. 87 ; 11 L. 419; H. D 1030, Nos. 3 and. 8.
    6.The judgment in a revocatory action does not avail those not privies nor parties. 9 R. 28; 6 L. 540. It annuls only so far as the plaintiff is concerned. C. O. 1973 ; 6 An. 552. Therefore, the judgment did not return the property to the succession of Stafford, hut ordered it to be sold to pay the plaintiff. Not being returned to the succession, its proceeds cannot be subject to the claims of the succession.
    7.In whatever light this judgment he viewed, whether as returning or not returning the property to the succession, the plaintiff has a privilege superior to all others.
    8.The services of third opponent are so interwoven with services rendered Mrs. Stafford, who was claiming the property as her own, that they cannot be separated, nor could they, * in representing a claim so conflicting to the interest of the succession, enure to the benefit of the succession.
    
      B. B. Hunter, propria persona.
    
   The opinion of the Court was delivered by

Bermudez, C. J.

Hunter, the third opponent, claims to be paid exactly one thousand dollars out of the proceeds of the sale herein, which realized $12,500.

We have no jurisdiction over his case.

This is not a suit iu which a fund is proposed to be distributed. It is one in which a matter in dispute, a sum of money, is exactly one thousand dollars.

The proceeds of the sale do not, under and by reason of the opposition, constitute a fund to be distributed by this Court.

The. opponent claims no more than one thousand dollars. He did not arrest and could not have prevented the plaintiff in the exercise of his rights over the surplus of that sum, as the proceeds of the sale, and over which there was no contest, below.

Under the pleadings, the question is simply: Whether the third opponent is or not entitled to be paid one thousand dollars or less.

If this Court could, by its judgment, order the distribution of a sum exceeding one thousand dollars, it could entertain jurisdiction, but under no conceivable contingency, can it order anything more than the payment to the third opponent of exactly one thousand dollars.

The proposition cannot be countenanced, that this Court is vested with jurisdiction over any claim for less than one thousand dollars, when sought to be paid out of the proceeds of a sale exceeding one thousand dollars, when the surplus is not a matter of contest.

The clear object of the Constitution was to clothe this Court with appellate jurisdiction in civil matters, only in such cases in which it could render a judgment directing or denying the payment or distribution of a sum of more than one thousand dollars, or when the matter in dispute exceeds that sum.

The phrase: The Supreme Court shall have appellate jurisdiction when the fund to be distributed, whatever may be the amount therein claimed, shall exceed one thousand dollars, exclusive of interest,” Const. Art. 81, cannot be construed so as to apply to a case like the present one, in which the Court cannot direct the distribution of a fund exceeding one thousand dollars.

The circumstances of this case are to be measured, in order to test the question of jurisdiction, by the first part of the Article under consideration, which provides that the appellate jurisdiction of this Court, in civil matters, shall extend to all cases where the matter in dispute shall exceed one thousand dollars. Art. 81, Const.

The claim of the opponent not being for more than one thousand dollars, and there being no fund to be distributed by the Court exceeding one thousand dollars, this Court has no jurisdiction over the case.

It is ordered and decreed, that the appeal herein be dismissed, with costs.

On Application por Rehearing.

Tlie opinion of tlie Court was delivered by

Todd, J.

A careful examination of tlie authorities bearing on this point, satisfies us that we erred in our previous decree, dismissing the appeal for want of jurisdiction.

By Article 81 of the Constitution, this Court has jurisdiction “when the matter in dispute, or the fund to be distributed, whatever may be the amount therein claimed, shall exceed $1,000, exclusive of interest.”

That part of the Article relating to the “ fund to bo distributed,” was formulated, to correspond with the jurisprudence on the subject, settled by a long line of decisions of this Court. Those decisions we have diligently reviewed, and find that the question of jurisdiction on this point, in such cases, is controlled by the amount of the fund to be distributed; that this constitutes the object of dispute;, that if the entire fund is claimed by one party, and that fund exceeds the amount required to give jurisdiction, that the jurisdiction vests, though only a part of that fund is claimed by the other party and that part is below the amount which, under other conditions, is necessary to give jurisdiction. In such a contest, it is considered that a question has arisen that involves the distribution of the entire fund, one side demanding the whole of it, and the other denying such right, leaving for decision how the fund is to be divided or how disposed of. The decisions are uniform in support of this view. 8 L. 167; II L. 462; 2 An. 190; 29 An. 327 ; 30 An. 625; 31 An. 453.

In a recent case decided by us, Succession of Duran, not yet reported, the majority of the Court did not think that the decisions above cited .were applicable to that case, inasmuch as by the effect of a prior judgment, not appealed from, homologating tiie account and ordering the distribution of the fund wherein not opposed, the dispute had been restricted to a sum remaining much below the appealable amount.

Our previous decree, dismissing the appeal, should, therefore, be set aside.

Tlie Chief Justice adheres to the original opinion dismissing the appeal.

On the Merits.

The opinion of the Court was delivered by

Todd, J.

The plaintiff brought a suit to cause to be annulled a tax sale of a plantation belonging to the succession of Leroy A. Stafford, and to have his mortgage recognized and made executory against the property.

The defendants in that suit were the executor of the estate, G-. W. Stafford, the widow of the deceased, Mrs. S. C. Stafford, the purchaser of the land’at the tax sale, and several of her vendees 8f portions of the land sold by her after her purchase.

The tax sale in question was sought to be annulled, on the ground of fraud and certain illegalities in the proceedings. There was judgment annulling the sale and recognizing the mortgage of the plaintiff, and ordering the sale of the property to pay it. The property was sold and bought in by the idaintiff, Henry Bensliaw, the mortgage creditor.

The defendants in the suit of nullity referred to, and to subject the property embraced in it to the payment of Renshaw’s mortgage, were represented by R. P. Hunter, Esq., attorney-at-law. After judgment ivas rendered in the case, and pending proceedings for the sale of the property mortgaged, Mr. Hunter, by third opposition, claimed a superior privilege on the proceeds of the sale, over the mortgage creditor, for one thousand dollars, being the amount of his fee for defending the suit in question. Prom a judgment in his favor for $350, this appeal was taken.

The plaintiff resists the claim of the opponent mainly upon the ground that the services rendered by him were not for the benefit of the succession, but opposed to its interest. The object of the suit, as stated, was to annul a fraudulent and illegal tax sale, by means of which the succession had been stripped of almost its entire property. This attempt of a creditor to bring back the property into the succession and make it liable for his debt, was resisted by the executor of the estate and the purchaser at the tax sale, and others, to whom she had sold. In their resistance to this demand of Renshaw, the defendants were assisted and represented therein by the present opponent. It would naturally strike one, from this statement of the case, that the professional services of the opponent, rendered under such circumstances and upon such issues, were not for the advantage of the succession against which he now prefers the charge for his said services, but were really opposed to the succession, as they were in resistance to the effort to bring back the property illegally disposed of, to pay a debt of the succession. Por such services, those who were opposing this attempt, were justly chargeable and should pay. It is true that in that suit prescription was pleaded against the creditor’s demand, and was overruled. Conceding that this feature of the defense was intended for the benefit and protection of the succession, when we consider that it was doubtless interposed also for the protection of the illegal salej and for the benefit and at tlics instance of those interested to maintain it, and considering the entire character of the action and the defense thereto, we cannot conclude that the opponent is entitled to a judgment against the succession, and a preference on the fund in question for any amount. Should the plea of prescription .be regarded as made for the sole benefit of the succession, yet the evidence does not enable us to separate this part of the defense from the rest, and make a separate valuation of the opponent’s services exclusively on this point. For these reasons, we think the claim of the opponent should have been rejected.

This being the first decision on the merits, the opponent is not precluded from applying for a rehearing.

It is, therefore, ordered, adjudged and decreed, that our previous decree dismissing the appeal be set aside, and it is now further ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and that the demand of R. P. Hunter, opponent, be dismissed, at his costs in both Courts.

Rehearing refused.  