Succession of Grace , 29 La. Ann. 694 ( 1877 )

On Motion to dismiss.

The opinion of the court was delivered by

Manninu, C. J.

Hugh Yongue, administrator' of the succession of E. E. Grace, having filed his final account, its homologation was opposed by Elias Miller, tutor to a minor child of the deceased, and by Amelia Miller.. At the June term just past, a continuance was prayed by the tutor, and' his attorney filed an affidavit in support thereof, and the judge ordered-the continuance thus prayed.

Marx, a creditor of the deceased duly acknowledged, prayed an appeal from this order. The tutor to -the minor, and the administrator,, move in this court to dismiss the appeal on various grounds, the first of which is that no appeal lies from an order of continuance. The motion must prevail.

The appellant contends that his' appeal is properly taken, because it is from an interlocutory order which works him irreparable injury. The-injury occasioned by mere delay is not irreparable, and it has been frequently held that no appeal will lie from an order granting a continuance productive of mere delay. In Compton vs. Patterson, 1 New Series, 597, it was so expressly ruled. In the State vs. Judge of the Parish Court, 15 La. 521, this court refused a mandamus to compel the judge to. proceed to a trial of a cause in which he had granted a continuance, and the refusal was put upon the ground that the court would be called on to revise an order from which no appeal could be taken. And this was; in accordance with the previous ruling in State vs. Esnault, 12 Martin, 488.

The appellant’s counsel refer us to Duplessis vs. Lastrapes, 11 Rob. 451, in support of the doctrine that an appeal will lie from an interlocu-, tory judgment which may work an irreparable injury. That is undisputed, and is as well settled as the other ruling, that no appeal lies from an order of continuance. Duplessis’ case was an action to fix the boundaries of land. The defendants had called in their neighbor, whose boundary might be affected by the displacement of theirs, and that neighbor had called his vendor in warranty, and this vendor wanted a continuance to call in his vendor. The court said — “ if it be conceded that the defendant had the right of making his neighbors parties, and they their own, there would be no limitation to the number of parties that might thus be brought in.” The suit would thus be procrastinated to an indefinite period.

The reason of the rule, that a mere order of continuance can not be appealed from, is its futility, and the wisdom of that rule was never better illustrated' than in the present case. Eor what is the. object of this appeal, and how is the appellant to be benefitted by it ?

The concluding sentence of his counsel’s brief asks us to reverse the order of continuance granted by the parish judge, and proceed to render such judgment as the parish court should have rendered, i. e. order the distribution of the funds of the estate among the creditors acknowledged, and placed on the tableau by the administrator.

As we have not original jurisdiction, there must be rendered some judgment by the lower court for us to revise. There has been neither trial nor judgment below. The parish judge has not entered any judgment, in or by which the claim of any creditor has been either allowed or rejected, nor has he approved or disapproved any charge made by the administrator. No issue, raised by the pleadings, has been passed on by him. What judgment should we revise, if we undertook to do what the appellant now asks of us ? There is but one judgment, order, or decree, and that is, that the case be continued.

Assume that the order of continuance was improperly made. Assume that an appeal from such order is permissible, and that we so declare, our judgment would be that the continuance was improperly granted, and the case must necessarily be remanded for trial. Obviously we should' ■assume original jurisdiction if we were to pass upon the account, or any •opposition thereto. It has not been considered or adjudged in any manner by the lower court, and we must have before us a judgment of that •court upon the issues, or one of them, to be revised., Here there is no judgment, either to be affirmed, amended, or reversed. The sole matter before us in the record is an order of continuance. Meanwhile, no action is taken in the case in the lower court, and thus the appellant, who complains of an improper delay caused by the order of the parish judge, is himself the cause of a greater delay caused by his appeal.

it is unnecessary to consider any other of the grounds of appellees’ motion to dismiss.

It is ordered and decreed that the appeal is dismissed at the costs of appellant.