On Motion to Dismiss the Appeal.
BREAUX, C. J.The grounds of the motion filed by plaintiffs and appellees are that the judgment decrees the partition of property of which the ownership, it is averred, is admitted by the parties; and, further, the contention is that this court has decreed that no appeal lies from such a judgment, as it causes no irreparable injury; and, besides, that the parties have an absolute right to a partition.
AYe take up for decision the first ground of the motion; that is, in effect, that the parties have agreed to the judgment of partition.
AYe do not find that the parties have by their pleadings or by special agreement expressed consent to the judgment rendered, or that they have so pleaded as to show that they no longer can appeal. The record ¿s made up shows that there are issues between the parties. AYe can best dispose of the question by referring to the record, in which we find that the late Mrs. Anna Maria Gartner, wife of Nicholas Kremer, died in April, 1904, leaving paraphernal and community property as per inventory to an amount within the jurisdiction of this court. Her husband opened the succession, and in addition qualified as tutor of Joseph C. Kremer, one of their children.
In the year 1907 Nicholas Kremer, husband of Anna Maria Gartner, died. His succession was opened, and Michael Kremer, his son, was appointed administrator.
An inventory was taken, showing, as per this inventory, that all of the property belonged to the community which had existed between him, Nicholas Kremer, and his predeceased wife.
A few months after Michael Kremer, as one of the heirs of Nicholas Kremer, joined by other heirs of said Nicholas Kremer, brought suit against one of his heirs, to wit, Mrs. Marshall, for a partition of the community property.
We state as in place here, and as forming a part of the statement of the case, that Valentine Kremer, one of the heirs of age of Nicholas Kremer and wife, died in January, 1907. The succession was opened. The widow of Valentine Kremer applied to the court and was confirmed as natural tutrix of Augustine Kremer. She intervened in the partition proceedings alleging that her ward had an interest as an heir and was a necessary party to the partition.
*488The defendant, in her answer to the intervention, denied the rights of the intervener.
The court decided in favor 'of the intervener and against defendant, and ordered a partition to be made.
The issues preclude the idea of consent to-a partition to be made in the manner proposed by plaintiffs.
The defendant in the district court pleaded the exception of no cause of action and prematurity, that make up an issue which we cannot overlook in matter of jurisdiction.
’ The defendant denies that she accepted the community, and urges that a partition cannot be made as proposed as relates to the community.
We have seen that there was an inteivener who claims as an heir.
The defendant controverted in her answer to the intervention the right of the intervener to become a party to the partition, and denied her heirship.
The judge of the district court sustained the demand of the intervener, and decided against defendant’s position in this respect.
The right to an appeal is all that is involved before us at this time, and it follows that the issues can be considered only with reference to that right.
The decision confidently cited by the appellees to sustain their grounds is not pertinent, for it decides that, there being no issues left for the appeal, it would be doing a vain thing to allow the appeal.
That is not the case here. But, not to leave at this time the cited case, we quote from it:
“If the case involved a controversy as to the fact of ownership, or as to the mode of partition, possibly under some circumstances an appeal might lie.” Reynolds v. Reynolds, 43 La. Ann. 1118, 10 South. 303.
In the case here there is a controversy as to the fact of co-ownership as to one of the alleged owners, and. there is controversy about the mode of partition, and there are circumstances rendering it proper not to dismiss the appeal on the motion presented.
The other decisions cited by appellees in support of their motion are equally as inapplicable.
It only remains for us to overrule the motion.
It is overruled.