Opinion
No. 35216.
April 3, 1939.
Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage, Judge.
In the matter of the succession of Mrs. Herman Heinig. Dudley C. Foley, Jr., applied for letters of administration, and was opposed by Mrs. Johanna Schenck, wife of Charles Murphy. From a judgment appointing Dudley C. Foley, Jr., as administrator, opponent suspensively appeals.
Motion to dismiss denied.
Walter W. Wright, of New Orleans, for appellee Dudley C. Foley, Jr.
Robert Guerard Hughes, of New Orleans, for appellant Mrs. Johanna Schenck, wife of Charles Murphy.
Dudley C. Foley, Jr., as agent and attorney in fact of Herman Heinig, non-resident and husband of decedent, applied for letters of administration in the above succession, alleging that decedent, also a non-resident, had left community property and effects within the jurisdiction of the court, consisting mainly of a certain piece of real estate and rentals due thereon, and that Herman Heinig was the surviving spouse in community; that there are debts due by the estate of the decedent, as well as debts due to the estate, and that an administration is necessary.
An opposition to the appointment of Dudley C. Foley, Jr., as administrator, was filed by Mrs. Johanna Schenck, wife of Charles Murphy, who alleged that she is a resident of the City of New Orleans; that she is a sister of decedent; that decedent left no forced heirs; that the property left by her within the jurisdiction of the court is her separate property; and that opponent, as an heir of decedent, is entitled to the administration thereof.
The opposition of Mrs. Charles Murphy was dismissed, and from the judgment appointing Dudley C. Foley, Jr., as administrator, opponent has suspensively appealed, and has executed and filed bond in the lower court, in the sum of $200, the amount fixed by the judge.
Dudley C. Foley, Jr., administrator and appellee, has moved to dismiss the appeal at the cost of appellant.
The motion to dismiss the appeal is without merit. Under articles 580 and 1059 of the Code of Practice, a suspensive appeal cannot be taken from a judgment appointing an administrator of a succession, after the determination of the necessity for the appointment by the judge.
However, a suspensive appeal from a judgment appointing an administrator, though not permitted under articles 580 and 1059 of the Code of Practice, will not be set aside, where appellant, as in the case at bar, has furnished bond in the amount fixed by the judge, but will be maintained as a devolutive appeal. Succession of Pavelka, 157 La. 480, 102 So. 579.
For the reasons assigned, it is ordered that the order of appeal herein granted from the judgment dismissing the opposition of Mrs. Johanna Schenck, wife of Charles Murphy, to the application of Dudley C. Foley, Jr., agent and attorney in fact of Herman Heinig, to be appointed administrator of the succession of Mrs. Herman Heinig, be and is hereby decreed to operate devolutively and not suspensively.
It is further ordered that the motion to dismiss the appeal, filed by appellee, Dudley C. Foley, Jr., administrator, be and is hereby denied and overruled.
HIGGINS, J., absent.