On Motion to Dismiss.
LAND, J.Mrs. Josephine Boyle, wife of .James D. Connell (hereinafter called Mrs. Connell), applied to be appointed administratrix of the succession of her deceased mother, Catherine Housknecht, widow by first marriage of Edward Boyle, deceased, and widow by second marriage of Gotlieb Meyer.
This application was opposed by Edward Boyle, a son of the deceased, and by John W. Boyle, Corinne Boyle, and William Boyle, children of a son of decedent’s first marriage.
The opponents recommended the appointment of John W. Boyle, as administrator, in preference to Mrs. Connell, a married woman, alleged to be without business qualifications or experience.
The opponents alleged that Mrs. Connell was indebted to the estate in a large sum, which she had failed and refused to include in the inventory, and that Mrs. Connell, as agent and attorney in fact of her aged mother, had withdrawn from bank several hundred dollars, and deposited the same to her individual credit. Later John W. Boyle ruled Mrs. Connell to show cause why she should not have placed on the inventory the sum of $1,535.38 collected by her, under the said power of attorney, from a certain bank in the city of New Orleans. Mrs. Connell answered the rule, and averred that said sum was received by her as a manual gift from her mother.
After the rule was taken up and evidence adduced, the parties proceeded to try the opposition to the appointment of Mrs. Connell, as administratrix,. under the following agreement, to wit:
“It is agreed by counsel representing applicant and counsel representing opponent that this cause shall bo consolidated with the matter of the rule to turn over funds, and that the evidence taken in said rule shall be used in this cause, as far as applicable, reserving to either party the right to offer such additional evidence as may be deemed proper and necessary.”
The case was submitted to the court under the following agreement of counsel;
“It is agreed that in this case, both as to the opposition of appointment of administrator and rule taken against Mrs. James D. Connell, to return to the succession certain money, enumerated in said rule, be read, rendered, and signed by the judge hereof, during vacation and out of term time, and that an appeal may be taken from said decision, by motion, during vacation, the same as though this cause had been decided in term time and an appeal regularly taken therefrom.”
It is apparent that the word “judgment” has been omitted in the first line of the' agreement.
On October 8,1913, the judge in open court, rendered a judgment dismissing the opposition and appointing Mrs. Connell as administratrix. On the same day the judge in open court rendered a judgment discharging the rule to place the sum of $1,535.38 on the inventory. Both judgments were read and signed in open court on October 14, 1913. '
*822Opponents took an appeal from the “judgment” dismissing their opposition to the appointment of administrator and dismissing their rule to turn over moneys to the succession. The judge fixed the amount of the appeal.hond in the sum of $100. The appellants executed a single bond for said sum, and the bond recites that the appellants have filed a motion of appeal “from a final judgment' rendered against * * * in the suit of Succession of Mrs. G. Meyer, No. 103,350, of the civil district court for the parish of Orleans, on the 8th day of October 1918, and signed on the 14th day of October, 1913.”
[1] The appellee has moved to dismiss the appeal on the grounds:
That the judgments below were distinct and separate, and two appeal bonds should have been furnished; that the appeal bond is insufficient to identify it with the motion and order granting the appeal, or with either judgment.
The two proceedings involved the same question of the alleged failure and refusal of Mrs. Connell to account for and produce funds belonging to the succession. The two proceedings were consolidated by consent of counsel, and the agreement to submit both cases for decision in chambers clearly implies the rendition of one judgment. In the motion for an appeal, and in the order granting the appeal and fixing the amount of the bond, the two judgments are treated as one.
This case is much stronger than that of the Succession of Clark, 30 La. Ann. 801, where three separate judgments were rendered; one vacating an order appointing a provisional administrator, another, maintaining an opposition to the appointment of any administrator ; and a third ordering a partition by licitation. An appeal from the three judgments on one bond was maintained. The court said:
“All the questions passed upon in these three judgments arose in one case, the succession of John Clark; and they all tend to one result, the settlement of the succession of John Clark, whether by an administration, or by partition among the heirs, which puts an end to the succession.”
In Succession of P. C. and N. Clairteaux, 35 La. Ann. 1178, there were two suits in each succession on distinct and separate matters, and . only one bond was given. The court said that “the oppositions were not consolidated below, to be tried together and determined by one * * * judgment.”
The motion to dismiss is therefore overruled.