On Motion to Dismiss.
The opinion of the Court was delivered by
Todd, J.Three of the major heirs of N. A. Baumgarden obtained an order from tbe Civil District of New Orleans putting them in possession of the succession of the deceased.
The executors of the last will of Mrs. Therese Baumgarden, the wife of said decedent, and who died after him, and the tutor of the minor child of said decedents, have appealed from this order or judgment.
There is a motion to dismiss their appeal on substantially tbe following grounds:
*6761. That the parties have no appealable interest.
2. That the appellees have not been cited, and that the appellants, as third parties, could not appeal by motion, but only by petition.
3. That the bond of appeal was insufficient in amount for a suspensive appeal.
First. C. P. Art. 571 provides: “ The right of appeal is’ given not only to those who were parties to the cause in which á judgment has been rendered against them, but also to third persons not parties to such suit, when such third persons allege that they have been aggrieved by the judgment.”
These appellants allege that they have been so aggrieved, and among the grounds of their appeal set forth in their petition therefor are, that the administration of the succession of Therese Baumgarden, of whose last will they are executors, involves that also1 of N. A. Baum-garden, the property comjn'ising the successions being community property and undivided ,• that an administration is necessary, and that a succession cannot exist in part and be terminated-in part at the same time.
The tutor of the minor heir complains of the major heirs being put in possession, and denies that the minor heir can be put in possession until there is an administration.
Some of these facts are shown by the allegations and admissions of the appellees in their petition to be put in possession of the estate. We think the appealable interest is sufficiently shown.
Second. There was no need of a citation, since the appeal was taken by motion in open court, and there is no provision of law limiting third parties to appeal by petition alone. The cases cited to support such a proposition, 21 An. 755, 33 An. 484, were cases where the appeals had been taken by petition and no citations had issued, but they do not negative the right of such parties to appeal by motion.
Third. The bond was fixed by the Judge, and properly so. It was not a suspensive appeal from a moneyed judgment nor from a judgment concerning the title to property yielding a revenue, but one where the amount of the bond was a matter for the discretion of the Judge.
Some of the reasons urged by the appellees7 counsel for the dismissal would require an investigation of the facts on the merits, and where such is the case the appeal will not be dismissed. Baker vs. Frellsen, 32 An. 882.
The motion to dismiss is, therefore, denied.