(dissenting).
The ex parte judgment rendered by the district court, from which this appeal has been taken, is founded on the allegation “That under the law of Louisiana * *” appellant, the mother of decedent, is a forced heir “to the extent of an undivided one-fourth of his estate”. This is an erroneous statement of the law as Article 1494 of the Civil Code provides that donations inter vivos or mortis causa “can not exceed two-thirds of the property, if the disposer, having no children, leave a father, mother, or both.” Yet, the court, in its original opinion which is reinstated on rehearing, holds that the appeal must be dismissed because this was the judgment prayed for by appellant.
Although it is ordinarily true that a party in whose favor a judgment has been rendered cannot appeal therefrom, the court has recognized exceptions to this rule on more than one occasion. See Police Jury to Use of the New Orleans, Opelousas & Great Western R. Co. v. Succession of McDonogh, 8 La.Ann. 341; Hewes v. Baxter, 45 La.Ann. 1049, 13 So. 817; Barbara, Inc., v. Billelo, 212 La. 937, 33 So.2d 689 and Salassi v. Salassi, 220 La. 785, 57 So.2d 684. Indeed, the relief asked by appellant on this appeal is identical in principle with that sought by the appellees in Otwell v. Vaughan, 186 La. 911, 173 So. 527,1 where the court upheld the appeal.
*848The rationale of the opinion on rehearing is that the appeal will not be entertained because the judgment is ex parte and that, therefore, appellant may have the error corrected by proceeding in the district court. But I cannot see why the appeal should be dismissed for that reason as 'I know of no provision of law that denies a person aggrieved from appealing from an ex parte judgment. In fact, it strikes me that appeal is the proper remedy, even though appellant might be entitled to pursue another course in the district court. Whatever be her remedy there, it would appear that it is coextensive and identical in nature with the relief she seeks in this case and that, if she cannot complain of the judgment because it conformed to her prayer, the same sort of reasoning would bar her from proceeding before the trial court. • •
I respectfully dissent.
. In that matter appellees had answered the appeal, praying for a change in the judgment which had been rendered in accordance with the prayer of their petition. Appellants then attempted to dis-the dismissal on the ground that, since miss their appeal but the court refused appellees had answered the appeal, they were entitled to have the judgment of the trial court corrected notwithstanding that that judgment granted the exact relief prayed for by them in their petition.