On Motion to Dismiss the Appeal.
BREAUX, C. J.The following are the grounds of appellee’s motion to dismiss:
First. The amount of the bond, to wit, $500, is insufficient for a suspensive appeal.
Second. A suspensive appeal will not lie from a judgment refusing to appoint executors, nor from a judgment recognizing legal heirs and sending them into possession.
We will state in the first place: The facts are sufficiently stated in No. 17,277, entitled Succession ,of Miss Julia P. Drysdale, Miss Mary Ann Pike et al., praying for certiorari and mandamus, recently decided by this court (rehearing refused October 7, 1908) 47 South. 367,1 to relieve us from the necessity of stating them again. All of the grounds of the motion, save one, have already received consideration from this court. It has been held, as to these two grounds, that the losing party had a right to a suspensive appeal on a bond for costs. These grounds, heretofore sustained as just stated, relate to the recognition of the heirs and the sending them into possession. There remains, therefore, only one ground for us to decide, and that is, that the bond is insufficient.
In the cited ease, the district court refused to execute the judgment on the application of the appellees, Miss Mary Ann Pike and others.
It was correct on the part of the district judge to refuse to execute the judgment and to decline to place the heirs in possession.
As relates to the application for the appointment of an executor: That application is a mere incident of the case. If the suspensive appeal were to be dismissed, there would remain a devolutive appeal as relates to the application. The case would still be before ns, as the suspensive appeal really suspends nothing as the issues are before us. We must decline to dismiss it, as its dismissal would serve no purpose.
The only remaining ground for our decision, as before stated, is whether the amount of the bond is sufficient for a suspensive appeal.
It is sufficient. There was no judgment for money, and no moneyed demand suspended by the appeal. There was no reason for requiring a larger bond. The bond for costs suffices in this class of cases.
The motion to dismiss is therefore overruled.
122 La. 37.