Succession of Cloney , 29 La. Ann. 327 ( 1877 )

On Motion "to Dismiss.

The opinion of tho court was delivered by

Spencer, J.

On the 18th of July, 1876, the administratrix filed her aecount, on which James Grerinon, appellant, was placed as an ordinary creditor for $350, and on which she put herself as a privileged creditor for the widow’s $1000; also privileged attorney’s foes for $500.

Several oppositions were filed, but none by appellant.

On the the third of August. 187G, on motion of the attorney for administratrix, and on the oath of the deputy clerk that the account had been duly advertised in the Now Orleans Republican, the court homologated the account so far as not opposed, without other proof.

On the twenty-second of August, 1876, there was judgment sustaining the oppositions of certain creditors, and dismissing that of M. Hennenmann, and reducing attorney’s fees to five per cent. On the same day Hennenmann moved for a new trial, which was, on the twenty-ninth of August, granted.

On the thirty-first of January, 1877, the administratrix filed in the cause, on the trial, a written waiver of her claim to the $1000, and also a consent that the attorney’s fees be reduced to five per cent. The court gave judgment, reciting that all the oppositions had been withdrawn, and homologating the account as rendered.

On the sixteenth of February, 1877, James Gronnon, by motions in open court, appealed from the decrees of homologation, of date August 3,1876, and January 31,1877.

Appellee moves to dismiss the appeal on the following grounds :

First — Appellant’s claim is for only $350.

Second — The record does not contain certain papers used below.

Third — That the appeal bond is insufficient for a suspensive, appeal.

First — The amount of the fund to be distributed determines the right of appeal. It is more than five hundred dollars.

Second — The papers which arc properly part of the transcript have been filed. The mortuaria was not offered below, and therefore makes no part of the record.

Third — The bond is for the amount fixed by the court. It is good. A bond for costs is all that was required.

The motion to dismiss is overruled.