Succession of Dickson , 227 La. 838 ( 1954 )

HAMITER, Justice. '

Brice D. Dickson died testate at his domicile in Caddo Parish on July 4, 1953. Surviving were his widow, Mrs. Elizabeth M. Dickson, and his mother (a forced heir), Mrs. Bula D. Dickson.

Following probate of decedent’s olographic will, in which Mrs. Elizabeth M. Dickson was constituted sole and universal legatee, such widow and the mother joined in a petition in which they alleged, among other things, the following:

“That petitioner, Mrs. Bula D. Dickson, is the forced heir of her said son and is entitled to one-fourth of her son’s estate and petitioner, Mrs. Elizabeth Moseley Dickson, is entitled to the remaining three-fourths thereof under the provisions of said will;”. And petitioners prayed accordingly.

On August 14, 1953, wholly in keeping with the allegations and prayer of the petition, the widow and mother, by an ex parte judgment, were sent into possession of decedent’s estate (inventoried at $5116.-62) in the proportions of three-fourths and one-fourth, respectively.

Subsequently (almost a year later), Mrs. Bula D. Dickson, the mother, requested and obtained this devolutive appeal. In connection with it she shows that the share of her son’s estate to which she is entitled is one-third, rather than one-fourth as was decreed by the district court in the ex parte judgment. And she contends that since the judgment could be so changed in another suit, as was accomplished in Janney v. Calmes, 212 La. 756, 33 So.2d 510, she should be able to achieve the same result by appealing from it. As pointed out by her, the rationale of the Janney case was' that estoppel “will not be maintained unless the person urging it has been misled, to his prejudice, by acts of omission or commission of him who is sought to be estopped.”

Urging that decedent’s mother cannot appeal from a judgment rendered strictly in accordance with the prayer of her petition (as is the case here), Mrs. Elizabeth M. Dickson, the widow, has moved to dismiss the appeal.

The motion appears to be meritorious. Our jurisprudence is to the effect that “a party in whose favor a judgment has been rendered, in strict accordance with his own prayer, cannot appeal, since a prayer that a judgment be rendered is something more than even a confession or an acquiescence * * State ex rel. John T. Moore Planting Co. v. Howell, 139 La. 336, 71 So. 529. See also White v. Hill, 10 La. App. 146, 122 So. 75, same case, 168 La. 92, 121 So. 585; Salassi v. Salassi, 220 La. 785, 57 So.2d 684; Barbara, Inc., v. Billelo, 212 La. 937, 33 So.2d 689; Mossier Acceptance Corporation v. Naquin, La.App., 33 So.2d 69 (writ refused by this court).

Appellant, in opposing the motion to dismiss, cites and relies on Police Jury — Right. Bank — to Use of the New Orleans, Opelousas & Great Western R. Co. v. Succession of McDonogh, 8 La.Ann. 341; Hewes v. Baxter, 45 La.Ann. 1049, 13 So. 817 and Otwell v. Vaughan, 186 La. 911, 173 So. 527. These cases are distinguishable from the instant matter. In none was the judgment rendered by the trial court strictly in conformity with the pleadings, prayer or demands which the appellant had submitted in the proceedings in the district court.

For the reasons assigned the appeal is dismissed.