
    (34 South. 163.)
    No. 14,198.
    Succession of BOTHICK.
    (Dec. 2, 1901.)
    APPEALABLE INTEREST — JURISDICTIONAL AMOUNT — DISMISSAL OF APPEAL — ACQUIESCENCE — RECORD—LOST EVIDENCE — RES JUDICATA — SEIZING CREDITORS — RIGHTS OF HEIRS — ACTION—PARTIES.
    On Motion to Dismiss Appeal.
    1. Where the decree appealed from, will, if permitted to stand, affect disastrously certain rights asserted by a third person, an appealable interest in the latter exists.
    2. Where the sum of amounts, or the value of things, involved in succession proceedings exceed two thousand dollars this Court has jurisdiction.
    3. The possibility, or even probability, that all the assets of a succession may be absorbed by claims prior in rank to that asserted by appellant, is no ground to dismiss her appeal.
    4. Acquiescence in the judgment must plainly appear or else there can he no dismissal of an appeal.
    5. The clerk certifies that the record of a certain suit, offered in evidence by appellees, cannot be found. He could not, therefore, copy it in the transcript. This is no,ground to dismiss the appeal, unless it appear that the missing record was lost or mislaid through fault of the appellant.
    6. The concluding paragraph of Rule 1 of the Rules of this Court (21 South, ix) authorizes the use of previous transcripts filed here in aid of appeals subsequently taken in the same succession.
    On Merits.
    7. The seizing creditors of certain rights of heirs in a succession were in possession by effect of their seizure, of which possession the co-heirs of the seized debtors were aware.
    Action of the co-heirs (without making the seizing creditor a party) in view of the fact that the rights involved are undivided, is not sustained.
    8. The court holds that under the facts — the rights of each will have to be established, contradictorily, one with the other, and that this can best be done at this time in these proceedings than to relegate them to another suit.
    9. If, as contended by appellees, their interests in the succession of which they are heirs is not at all indebted to the heirs of the late Mrs. Olivia Bothick, who are debtors of the appellant (Mrs. Hodding), this can be shown on the trial and the rights of each fixed. .
    . 10. The appellant, Mrs. Hodding, as judgment creditor of the heirs of Mrs. Bothick (who claimed to own property in indivisión with_heirs of T. W. Bothick), has sufficient interest involved in the suit to sustain her action against the said heirs, to the end of ascertaining whether or not her debtors are entitled to anything after settlement of respective rights.
    (Syllabus by the Court.)
    Appeal from Civil District Court, Parish of Orleans; Thomas O. W. Ellis, Judge.
    In the matter of the succession of Thomas W. Bothick. From two judgments rendered in proceedings taken in the succession, Caroline Louise Hodding appeals.
    Reversed.
    Benjamin Rice Forman, for appellant. Dart & Ivernan and Walter Stanford Lewis, for appellees. Charles Louque, for appellees heirs of Mrs. Bothick. John T. Whitaker, for appellees Mrs. H. Bothick et al. Buck, Walshe & Buck, for appellee New Orleans Manufacturing Co. Dinkelspiel & Hart, for appellee clerk of the civil district court.
   On Motion to Dismiss Appeal.

BLANCHARD, J.

Mrs. Caroline Louise Hodding appeals from two judgments rendered in proceedings taken in this succession record on matters pertaining to the succession, or incidental thereto. One of the judgments was rendered in March, 1901, the other in June, 1901.

Her appeal is met by a motion to dismiss filed by Mrs.'Margaret Louise Tyree, divorced wife of Thos. B. Bothick.

It appears that the interest of this mover in the succession of Thos. W. Bothick arose in this way:

Olivia T. Tyree was the third wife and surviving widow in community of Thos. W. Bothick; she was, during the marriage, his donee of particular property by acts of donation inter vivosj she was a legatee under his will; and she was, finally, the executrix of his estate. She died in November 1899, without heirs in either ascending or descending line. Whereupon her heirs of the collateral line — her three sisters — claimed her succession and were formally, by judgment pronounced in December 1899, recognized as her heirs and sent into possession.

Whatever succession — property and effects —she had was as might result from the settlement of the succession of her "deceased husband, Thos. W. Bothick, then in process of administration and still unsettled.

One of her three sisters, and, therefore, one of her heirs, is the present mover of the motion to dismiss this appeal — Mrs. Margaret Louise Tyree, whose divorced husband was 'the son and one of the heirs of Thos. W. Bothick.

Continuing the narrative further, it appears that after being recognized as heirs of Olivia T. Bothick, her three sisters were sued by Caroline Louise Hoddipg for a debt due the latter by Olivia T. Bothick, and judgment was rendered in favor of Mrs. Hodding against the three sisters each for her virile share of the debt. Whereupon, under fi. fa. .issued on this judgment the sheriff seized what was, practically, the interest of Olivia T. Bothick in the settlement of the succession of Thos. W. Bothick.

The present appeal of Mrs. Hodding is not from any decree directly determinative of her rights in the matter of her judgment against the sisters and heirs of Olivia T. Bothick, and the seizure made thereunder; but is from decrees relating to the settlement and partition of the succession of Thos. W. Bothick among his heirs, which decrees, if permitted to stand, will disastrously affect the proceedings taken by her to execute the ■said judgment.

We, therefore, find she has an interest to appeal — more interest, perhaps, to sustain her appeal than the mover of the motion to dismiss has to resist it, considering that whatever interest the latter has was seized under ,the judgment of this very appellant.

We also find that this Court has jurisdiction ratione materia of the appeal. The funds seized under garnishment in the hands of the Clerk of Court and Jos. D. Taylor, notary, and the lot of ground levied on under the judgment in Mrs. Hodding’s favor, which funds and lot are involved in attempted partition proceedings taken by certain of the heirs of Thos. W. Bothick and are matters affected by the judgments appealed from, alone exceed in amount or value the minimum jurisdictional limit of this Court.

Nor is it ground to dismiss the appeal that, perhaps, all the assets of the succession of Thos. W. Bothick may be absorbed by claims prior in rank to that asserted by the appellant.

Neither do we find any merit in the last ground of dismissal, to-wit: that Mrs. Hod-ding has acquiesced in the judgment appealed'from. We have found nothing in the record anywhere to justify this averment, and if it exist, counsel has not pointed out where it may be discovered.

As to the transcript of appeal being defective, the clerk of 'the trial court certifies that the record of a certain suit which was offered in evidence by appellees cannot be found. This is no ground for dismissal of the appeal unless it appear that the missing record was lost or mislaid through fault of the appellant.

Other parts of the record said to be missing are not copied into the transcript because already a part of the archives of this court in the transcripts of former appeals taken in the succession of Thos. W. Bothick. See Rule 1, last paragraph, of the Rules of this Court (21 South, ix).

A second motion to dismiss the appeal on the same grounds was filed by another of the appellees. Both are without merit and are denied.

On Merits.

BREAUX, J.

The purpose of Mrs. Caroline Hodding, appellant, is to have a judgment rendered in matter of the succession of Thomas W. Bothick, dated March 22, 1901, and another judgment dated 28th of June, in the same succession, reversed and annulled.

The record shows that Mrs. T. B. Bothick, Mrs. Westmark, and Mrs. Ward are the heirs of the late Mrs. Olivia T. Bothick, late widow of Thomas W. Bothick.

The record further discloses that bn the 24th of January, 1900, Mrs. Caroline Louise Hodding filed a suit against the heirs of Mrs. Olivia T. Bothick, and obtained a judgment against them for an amount due by their sister, Mrs. Olivia T. Bothick, from whom they inherited.

Mrs. Hodding obtained a judgment against them (heirs of Mrs. Bothick) in May, 1900, and under a writ of fi. fa. she seized the two lots of ground on Dorgenois street, in this city, which had been donated by T. W. Bothick to his wife, Mrs. Olivia T. Bothick, They were sold under this seizure, and brought the sum of $1,400.

The creditor, Mrs. Hoddiug, also seized, in the hands of the clerk of court, the sum of $669.74, and in the hands of Joseph D. Taylor the sum of $507.95, making total under seizure $2,577.69, which appellant says belonged to the heirs of Mrs. Olivia T. Bothiek, and now subject to her claim as creditor holding under seizure as before mentioned.

Thereafter a rule was filed by all the heirs of Thomas- W. Bothiek, late husband of Olivia T. Bothiek, except two, suggesting that there were funds in the registry of the court to which they laid claim, and asking that the funds be paid to them.

They alleged in this rule that notice of seizure “has been served upon the clerk of this court, and upon J. D. Taylor, purporting to seize the interest of the late Mrs. Olivia T. Bothiek in this fund.”

Mrs. Hodding was made party defendant to this rule.

It was heard and decided by our Brother of the district court, holding that funds deposited in the registry of the court, and in the hands of Jos. D. Taylor, notary public, “be and they are hereby ordered to be paid to movers above named”; the Orleans Manufacturing Company and Joseph D. Taylor to proceed against the succession of Mrs. Olivia T. Bothiek to urge their claims, to insert an excerpt from the order, “and thereby reserving that right.” Nothing is said in this order about the claim of Mrs. Hodding.

To go back a little in the history of this interminable litigation: On the 21st of March, 1901 (after the decision in Succession of Thomas W. Bothick, 52 La. Ann. 1863, 28 South. 458), without making Mrs. Hodding, creditor, who had seized the interest of the heirs of Olivia T. Bothick, a party, a judgment was' rendered on a rule, previously filed, ordering that the property donated to Mrs. Olivia Bothick, known as the “Dorgenois street property,” in the square bounded by Canal, Customhouse, and Broad streets, “be ordered to be sold by a named auctioneer and the funds deposited; and directed that the proceeds be deposited in court; and that out of the proceeds to the credit of the funds deposited, the plaintiff in rule be paid the sum of one hundred and forty-two «5/ioo dollars; that certain tombs be recognized as the property of the plaintiff in rule represented by Dart and Lewis.”

It was further ordered, that after the payment of counsel’s fee due on the amount allotted to Mrs. Olivia T. Bothiek by the heirs of Mrs. Olivia T. Bothiek, that the balance “of her said portion be turned over to the heirs of Mrs. Olivia T. Bothiek in the proportion of one-third each.”

“It is further ordered that the amount above paid to the plaintiff (in this trial) is in full satisfaction of any and all claims and rights which they have or might have against the succession of T. W. Bothiek, or against the late widow of T. W. Bothiek and her heirs.”

The same day that this Judgment was signed, the court ordered the clerk to pay to the plaintiff in rule the fund deposited, up to the sum of $1,000 and costs of the partition proceedings herein; “and, if the fund in hand is not sufficient to make up said amount, then that the remainder or difference between the amount paid by the clerk and said sum of one thousand dollars and costs be paid to the movers by J. D. Taylor, notary public.”

The two heirs of T. W. Bothiek not made parties, viz., William H. Bothiek and Mrs. Widow John Waters, appealed from the judgment on rule in question, on the ground that it was an attempt on the part of their coheirs to shut them out from all benefit in the succession of T. W. Bothiek.

On appeal, the judgment rendered on the rule was annulled, and the case was remanded to be tried. Succession of Thomas W. Bothick, No. 14,351, 33 South. 47, 109 La. 1.

Returning to the last judgment rendered, of June, 1901, the second judgment in the same succession from which appellant appealed, both judgments are before us for review. In his ruling, the judge of the district court held that the defendants in rule were not parties to the judgment of March preceding, and that, in consequence, it could have no effect against them, and for that reason the court reserved, in the second judgment, their right against the succession of Olivia T. Bothiek as before mentioned.

Our esteemed Brother of the district court, regarding the judgment of March 21, 1901, stated:

“The court is called upon by counsel to state whether or not that judgment was rendered by the court without the submission of evidence to it, as ordinarily. In response to this inquiry, the court now states that no evidence was submitted to the court; that no reading of the pleadings were had in open court; and that counsel stated that the judgment had been agreed upon by them. The couft understanding this to be the case, merely directed the entry'and authentication of the judgment, understanding that was the judgment by consent of parties.”

It follows that the foregoing is a mere' consent judgment, binding no one except the parties thereto.

The complaint of Mrs. Hodding is that she was not a party to this judgment, that is, the first judgment referred to above, March, 3901; that it was rendered with consent of parties not named, without any evidence or proof before the court, and that it can have no effect as between others not parties; and that the second judgment, that of June, 1901, is equally as null, because it did not pass upon the right of parties in interest.

The main contention of appellees, the heirs of T. W. Bothick, in opposition to appellant, is that Mrs. Hodding will get nothing in the end; that Mrs. Olivia T. Bothick is entitled to one-third of gross amount — stated as $3,-796.23 — equal to $1,265.57.

Her succession is charged with.....$1,650 00

Dorgenois property............... 1,400 00

Magazine street lot................ 900 00

Whole amount due by this succession ..................... $3,950 00

Donation before mentioned to which she is entitled when reduced...... 1,265 57

$2,684 43

Leaving the succession indebted to the succession of T. W. Bothick in that sum.

From this point of view, if these figures be correct, it is manifest that the seizing creditor would not be entitled to anything. ’

Ruling.

Appellant, from the two judgments, one of March, 1901, and the other of June of that year, urges that she has an interest in the result of the litigation, and, in consequence, the right to appeal.

Our attention is called by her counsel to the Code of Practice, art. 571, which gives, the right of appeal to persons not parties when they allege they are aggrieved by the judgment appealed from.

Her contention is that she is prejudiced, because under a fieri facias she had seized the interest of her debtors, as before stated, in the succession of Mrs. Olivia T. Bothick, widow of T. W. Bothick; that these funds could not be decreased -without making her a party, as they were funds to a portion of which she is entitled; in other words, that they are in gremio legis at her instance, and that they cannot be touched without notice to her.

The interests between the succession of T. W. Bothick arid of the widow, who survived him for some time, are so intermingled that it will be necessary (contradictorily with the heirs of the one and of the other) to establish the right of each.

True, Mrs. Hodding cannot reduce the amount coming to the heirs of T. W. Bothick, but a partition is necessary between the two in order to determine with some degree of certainty how much is coming to each.

Whatever may be the amount to which the heirs of Olivia T. Bothick are entitled, it will have to be paid to Mrs. Hodding to the extent of her interest.

We deem it best to set aside these judgments and remand the case.

If the figures of counsel mentioned in the statement of facts are correct, it will dispose of the suit in short order; if not, they may serve to calculate from in arriving at a conclusion. We would take them up at this time were it not that the testimony does not seem to have been directed to all these different items, and were it not in addition that, in our view, the issues should be tried in the district court contradictorily with .all parties concerned.

W'hile not attaching blame, we ■ must say that, if the litigation is not brought to an end at an early date, the succession will be settled by a force majeure. There will be nothing left about which to litigate.

It is therefore ordered, adjudged, and decreed that the judgment signed on the 22d day of March, 1901, and the order to the clerk signed the same day, also the judgment in June of the same year, in this case, are annulled, avoided, and reversed, and the suit is remanded to the district court to be tried.

Costs of appeal to be paid by appellees.

Those of the lower court to await the final determination in the suit.  