Opinion
No. 1202.
July 15, 1963.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 351,654, DIVISION "E", STATE OF LOUISIANA, HONORABLE HOWARD J. TAYLOR, J.
Frank C. Moran, Jr., New Orleans, for appellants.
Lewis A. Giraud, New Orleans, for mover and appellees.
Before REGAN, SAMUEL and HALL, JJ.
This is a motion to dismiss an appeal. The judgment appealed from was rendered after a trial on appellants' opposition to a provisional account at which trial appearances were made by appellants, the testamentary executrix and the other heirs. The judgment dismissed the opposition and approved and homologated the provisional account.
The executrix has moved for dismissal on the grounds that the judgment is not a final judgment and appellants do not show or allege irreparable injury. She relies upon LSA-C.C.P. Art. 2083, which provides that an appeal may be taken from a final judgment and from an interlocutory judgment when the latter may cause irreparable injury, and LSA-C.C.P. Art. 3337, which provides that a judgment homologating any account other than a final account shall be prima facie evidence of the correctness of the account and a judgment homologating a final account has the same effect as a final judgment in an ordinary action.
Other than the possibility that the issues raised by their opposition can be reopened by way of opposition to a subsequent account, we know of no procedure by which appellants can prevent the judgment of homologation from becoming finally determinative of those issues. And our settled jurisprudence is that a judgment approving a provisional account is res judicata as to issues passed upon and determined by that judgment; such issues cannot be reopened by way of opposition to a subsequent account. Succession of Nock, 239 La. 593, 119 So.2d 476; Dowling v. Canal Bank Trust Co., 216 La. 372, 43 So.2d 763; Liquidation of Canal Bank Trust Co., 211 La. 803, 30 So.2d 841; In re Phoenix Building Homestead Ass'n, 203 La. 565, 14 So.2d 447; Woodward, Wight Co. v. National Box Co., 168 La. 701, 123 So. 296, 297.
Insofar as appellants' right to appeal is concerned the judgment of homologation is final. Appellants therefore have the right to appeal under the provisions of LSA-C.C.P. Art. 2083.
The motion to dismiss is denied.
Motion denied.