Sucession of Huxen ( 1918 )

O P I H I O H,

St. Paul, Judge.

08 MOTION TO DISMISS.

This Is an appeal hy an administratrix from a judgment on an opposition to an alleged final aooount. The opponent, appellee here, moves to dismiss the appeal for want of jurladlotion In this court*

The .aooount shows oash assets amounting to Issb than $2000, but the inventory shows total assets exoeeding that amount, to wit, Beal /State $3000 and personal property $1678*98.

On the faoe of the aooount the liabilities of the succession exceed ita assets, but not the amount of the Inventory.

The opposition not only prays for the recognition of plaintiffs olalm (not allowed in the aooount) with a privilege, and that certain other oíalos be disallowed, but it further charges that the account "does not Bhow all the assets of the estate" and prays that it be "emended so as to increase the assets by adding to it such assets as may appear x x x to have been omitted from the aooount.

1.

As it is perfectly clear that the administratrix must finally aooount for every item oontained in the inventory, it folllows that the Inventory sonetltutes ordinarily and primarily the fund to be distributed, and forms the basis of appellate jurisdiction. Success! of Johnson, 141 Da 842. And this inventory continues to be the basis Of appellate jurisdiction until the amount of the assets has by successive diatrlbut ioniboen finally reduced below the lower limit of the oourt first vested with jurisdiction. In re Petit & Boh, 128 Da 148, and authorities there cited.

11.

Counsel for the administratrix, appellant here, states from the bar that the reason why the real estate does not appear on the aao is that in point of fact the said real estate does not belong to the Suooassion.snd never stood in the name of the deceased; that the only interest of the deoeased'in said real estate was an option therl upon whioh the deceased had made a deposit, whioh is acoounted for hy an item on the account reading; "Cash interest on deposit $116*"

But the record contains not a scintilla of proof to that effect, and counsel for the opponent states from the bar that he does not concede this as a fact.

Now, as the opponent may suoceed in establishing his olaim and yet fall to have his privilege recognized or to have stricken from the account those items whioh he opposes, it is clear that he has an Interest in having the assets of the suooession lnoreasid# so as to satisfy his olaim.

Hence it follows that there is a real controversy over the status of this real estate with the certainty that the administratrix must ultimately account for this property in some way, and the possibility that she may De condemned for its value. In the latter event the assets of the succession would be increased above the lower limit of the jurisdiction of the Supreme Court and that court has jurisdiction over such controversies.

She precise point was raised and passed upon in Suooession of Scott, 41 An 669. Shore the administratrix filed an account showing assets for distribution amounting to less than $8000, to whioh an opposition was filed praying that other assets be added to the acoount, whioh if allowed would raise the amount to be distributed above $2000; and the Supreme Court held that it had jurisdiction of the appeal whether taken by the administratrix or by the opponent.

Incidentally it may be said that this same ¿ase is authority for the proposition that when it is conceded on all sides that the items appearing on the inventory do not in fact belong to the succession and form no part of its assets, they are not to be considered in determining appellate jurisdiction. But, as we have said, there is no such concession^ here.

111.

She appellee insists that we should not transfer this oaBe to the Supreme Court but should dismiss it absolutely; and for that he relies upon Vidrine vs Dupre, 136 la 880, as holding in effect' that aot 19 of 1912 (authorizing the transfer of appeals from one appellate court to another, where the appeal has been taken to the wrong oourt) contains an unconstitutional grant of power.

New Orleans La, April 8 1918

We find nothing in that case on whioh to found such a doctrine. There the Supreme Court held simply this and no more; that in a oase in whioh the .Court of Appeal had jurisdiction, and had exercised that jurisdiction by rendering final Judgment in the cause, the application for a Writ of Review under Article 101 of the Constitution must be made to the Supreme Court itself, whioh (within certain delays) had full discretion to grant or deny such writ; and that the Legislature was without power- to authorize parties to make such application to the Court of Appeal, or direct the granting thereof by such Oourt of Appeal and the hearing thereof by Supreme Court as

But this has nothing to do with a case in whloh one appellate oourt has no jurisdiction, and in whloh it purposes to exercise none because it finds that some other appellate oourt is alone vested with jurisdiction. In suoh circumstances the question of transferring from the one oourt to the other involves only the manner and time of lodging an appeal in 'the proper oourt, matters whioh (differently from a writ of review) are not regulated by the Constitution, and over whioh the Legislature has, and from time immemorial has exerolsed, the fullest and most complete control.

The fact is that the purpose and effeot of Aot 19 of 1912 is simply this; that whenever an appellate court shall refuse to entertain an appeal because it finds that Jurisdiction thereof properly belongs to some other appellate oourt the appellant shall not on that j account lose his appeal but may simply take the transcript to the proper oourt and there proceed with his appeal as though it had been I lodged from the first in the oourt where it belonged. I

It is therefore ordered that this appeal be now transferred to I the Supreme Court of Louisiana in the salte maimer as if said appeal I had originally been taken to said Court. I