On the Merits.
The opinion of the court, on motion to dismiss, was delivered by
Breaux, J.The syndic of the creditors of Charles IT. Hamilton filed an account of the affairs of the insolvency- in his charge as syndic. Oppositions to the account were interposed by several of the creditors.
On the 11th day of March, 1898, the oppositions were heard. The provisional account was amended as ordered, and it was approved by the judgment of the court.
On the 26th day of April, 1898, Paul Jones & Co., who alleged that they are creditors of the syndic, moved for and obtained-an order .granting them a devolutive appeal returnable to this court.
*1037On May 2nd, following, their appeal was filed.
On this same day, the city of New Orleans, also an opponent to the account of the syndic, applied for and obtained an order of devolutive appeal, without bond, as the law authorizes.
In this court, the syndic, appellee, moved to dismiss the appeal,, alleging that his account was approved by a judgment in the court a qua; that the judgment had become executory; and for that reason that it was executed by him; that he had paid out, in accordance with authority granted by the judgment, the money of the estate of the insolvent.
That he was granted a discharge by the Civil District Court, as shown by a copy of the judgment which he annexed to his motion for the dismissal; and that there was no longer any person before the court competent to represent the appellee.
A copy of the judgment was annexed to the motion to show that the syndic was discharged, as he alleged.
The appeals being devolutive, there is no question here of staying the proceedings in the District Court.
Whether the appellants can still apply to have the judgment reversed from which they have appealed, presents the issue before us for determination.
Repeated decisions have well settled the rule of practice, that the court a qua can not affect the appeal by any judgment it may render.
After the appeal lodged here, it passed out of the jurisdiction of the lower court.
Any order it may grant can not have the effect of compelling the court to dismiss the appeal. - ’
The appeal having been granted, and it being before us, we must decline to dismiss it upon proof of a judgment of the court which has no longer jurisdiction in the matter of the appeal.
The propositions argued by counsel in the briefs for syndic, are:
First — That the syndic was regularly discharged, and that in consequence the appeal must be dismissed, as he is a necessary and interested party in all proceedings attacking his account.
Second — That the court is without jurisdiction mtione materiae. With reference to the first proposition it may well be that the syndic has been regularly discharged in the lower court, and yet be a party to the appeal. He, as an appellee, moved to dismiss the appeal. He is an appellee, and the judgment of the lower court, discharging him, *1038can not, of itself, have the effect claimed, in motion to dismiss the appeal.
With reference to the second proposition, that the court is without jurisdiction ratione materiae. The judgment of the lower court can not have the effect of maintaining a claim so as. to divest the Supreme Court of its jurisdiction, if it had jurisdiction when the appeal was lodged before that tribunal. A case before it can not be disturbed by ■the subsequent judgment of the lower court discharging- the appellee. . Conceding all that is claimed by appellee, it may be that the creditors, who are appellants, if their demand should be granted, would have rights against the other creditors overpaid, despite the discharge •of the syndic.
The motion to dismiss is denied.
Reconsideration of Motion to Dismiss.
Monroe, J.The syndic filed an account May 10th, 1897, presenting for distribution a fund exceeding $2,000. Oppositions were filed by several creditors, and, among others, by Paul Jones & Co., and the ■city of New Orleans.
Paul Jones & Co. claimed a vendor’s privilege, for $401.77, on the •proceeds of certain goods, and objected to the amount and rank of certain attorneys’ and notary’s fees. The fees complained of were reduced by the court a qua, apparently to the satisfaction of the opponents, who have confined themselves in this court to the question ■of their privilege.
The city of New Orleans claimed taxes for several years, in part on real estate and in part on movables, and its claim was allowed in part •and dismissed in part. The complaint here relates to a claim for $50. tax of 1894, assessed on movable property, with respect to which the opposition was dismissed.
There was judgment amending and homologating the account, March 11th, 1898, and the opponents above mentioned appealed, ■devolutively, April 26th and May 2nd, 1898, respectively.
There being no other appeals, the syndic proceeded to make a distribution, agreeably to the judgment of the lower court; and having ■completed the same, was discharged November 22nd, 1898. The following day he appeared here by counsel, and moved to dismiss the pending appeals, on the grounds that the fund to which they related 'had been distributed, and. he having been discharged, there was no *1039appellee before the court. These grounds were duly considered, and the motion to dismiss was denied, by judgment of this court, December 5th, 1898.
When the ease was called for trial, upon its merits, on April 20th, 1899, counsel urged a reconsideration of the judgment mentioned, and has since urged it by brief. On the same day another motion to dismiss the appeal of the city of New Orleans was filed on behalf of Mrs. Widow Fahey. In this motion it is alleged that the only question involved iu said appeal is whether or not the city shall be paid the amount claimed by it by preference -mt of the proceeds of property on which the mover was accorded a lessor’s privilege, and it is further alleged that the city has acquiesced in the judgment appealed from by receiving the amount for which judgment was rendered in its favor.
On the Motions to Dismiss.
The motion made on behalf of the syndic having been denied, could not, under the practice of this court, he renewed; nor can it now be urged as a pending motion. Duncan vs. Duncan, 29 Ann., 829; Succession of Edwards, 34 Ann., 216. The judgment of this court, however, denying the motion to dismiss, is to be regarded as in the nature of an interlocutory order subject to revision in the rendition of the final judgment on the merits. This being the case, whilst wo think the reasons already given for such denial sufficient, we will consider the matter somewhat further in deference to the earnestness with which it is pressed.
The first proposition is that the appeal should be dismissed because, since it was taken, and lodged here, the syndic, being appellee, has obtained his discharge. This is clearly a non-seguiiur. If the syndic represented all the appellees, for the purpose of the appeal at the time it was taken, and thereafter died or ceased, for some other reason, to represent them, the remedy would be, not to dismiss the appeal, but to make proper parties. If, upon the other hand, the syndic should be the sole appellee, representing himself alone, as, for instance, in a case where the only oppositions are based upon charges of misappropriation of funds by him, and the opponents choose to take devolutive instead of suspensive appeals, from a judgment dismissing their oppositions, and the jurisdiction of this court attaches by reason of -the filing of such appeals, it would hardly he claimed that the syndic *1040could defeat the proceedings against him by obtaining a discharge from the court whose jurisdiction over those proceedings had been divested by such appeals. It is clear that so far as any personal interest which he may have in the matter is concerned, his status, as an appellee, when once fixed in this court, can not be changed by anything which may take place elsewhere, except his death, and in case of his death, his place would be supplied by his legal representatives. The question then remains: does he, for the purposes of the appeals, represent all the creditors, and does his discharge by the court a qua after the filing of such appeals, in this court, render it necessary that those creditors should severally be summoned and made parties ? It is very certain that he does not represent those creditors who appear here as appellants, for, if he did, the appellants and appellee would be-united in the same person, and there would be no contestatio litis —an extreme view which has not been urged. As a matter of fact, and of law, each of the appellants represents himself here, as each represented himself in the lower court. But in the lower court, these appellants were not the only parties to the litigation. There were other creditors making- claims' contradictorily with each other, in concurso, the only difference between them, so far as the syndic is concerned, being that he approved the claims of some and disapproved those of others; but he could prevent no one of them from representing himself.
They were all cited and were all before the court, each being, at the same time, plaintiff and defendant, and the merits of their respective claims were determined by the same judgment, so that, when an appeal,was taken from that judgment, those who were not appellants, were, necessarily, appellees. It is true that they might have been content that the syndic should represent them here, just as they might have been content to have him represent them in the court a qua, but they were not obliged to rely upon him for the protection of their interests, nor have they all done so in this case, two of them having appeared by counsel, and one of them having filed a separate motion to dismiss the appeal taken by the city of New Orleans.
That the foregoing views import no novelties into our jurisprudence may be seen by reference to the following authorities:
“Notification of the filing of an account operates as a citation to all' persons concerned.” Succession of Bougere, 29 Ann., 378.
*1041“The opponents to a tableau of distribution are all plaintiffs and defendants.” Succession of Gayle, 27th Ann., 553.
“All parties interested, that the judgment should remain undisturbed, must be made parties to the appeal, or it will be dismissed.” I Hen. Dig., Vol. 1, p. 63, No. 7; Louque’s Dig., p. 43, V. No. 3, p. 13, No. 1.
“A motion of appeal and bond in favor of the clerk makes all persons interested parties to the appeal.” Succession of McKenna, 23rd Ann., 370.
“Since the passage of that act,” (requiring appeal bonds to be made in favor of the clerk) “our predecessors have constantly held, aud we think correctly, that when an appeal is granted in open court, and the bond is made payable to the clerk of the court, any persons having an interest are, by law, parties to the appeal, those who are not appellants are appellees." Webb vs. Keller, 39 Ann., 59.
The remaining proposition urged in support of this motion to dismiss is, that, since the appeals were taken, they being devolutive, the fund affected by the judgment appealed from has been distributed, and as the claims of the appellants do not amount, in the aggregate, to $2,000, this court is without jurisdiction rations materias.
The fund offered for distribution, and ordered to be distributed, exceeded $2,000, and the judgment appealed from directed and regulated the distribution of the whole fund. It is not claimed that an appeal did not lie at the moment the judgment was signed, but it is argued that the right to a devolutive appeal was cut off by reason of the subsequent execution of the judgment; this argument being based, to some extent at least, on the circumstance that the fund in dispute consisted, in part, of money, which, being the purchase price of certain effects, which were subject to lessor’s privileges, was retained by the lessors, to whom the effects were adjudicated, instead of being paid over to the syndic, and, by operation of the judgment, inured to said lessors before the appeals were taken. The answer, as we think, to this, is, that the right to a devolutive appeal, if taken within a year after the signing of the judgment, is not affected either by the fact or by the timé of the execution of such judgment.
It differs from a suspensive appeal only in that it does not suspend the execution of the judgment, and in that, by reason of the possible execution of the judgment pending such appeal, the eventual remedy of the appellant, in case of the reversal of such judgment, may be *1042different from what.it would have been, if he had appealed suspen•sively.
It is further said, however, that as the claim of the appellants, Paul Jones & Co., is for only $401.77,.the fund to be distributed can not be •affected beyond that amount, and that the jurisdiction of this court is, therefore, to be determined by the amount claimed. In other words, if we understand the proposition correctly, it is, that no matter what may be the amount of the fund to be distributed, unless the actual amount involved in the appeal, or appeals, from the judgment ordering the distribution, exceeds $2,000, this court has no jurisdiction.
The Constitution provides that the appellate jurisdiction of this court “shall extend to all cases, where the matter in dispute, or the fund to be distributed, whatever may be the amount therein claimed, shall exceed $2,000 exclusive of interest, etc.” Art. 85.
The Constitution of 1879 provided that the jurisdiction “should extend to all cases when the matter in dispute or fund to be distributed, whatever may be the amount claimed,.shall exceed $1,000, exclusive of interest,” etc. (Art. 81.) (This amount being subsequently increased by an amendment.)
By the Constitution of 1868, the jurisdiction extended “to all cases when the matter in dispute shall exceed $500,” etc. (Art. 74.)
Under the Constitution of 1868, it was held, although the words, “or “ fund to be distributed, whatever may be the amount therein “ claimed,” were not used, and the jurisdiction was made to depend upon the amount “in dispute,” that, when there was a fund to be distributed, the amount of such fund represented the amount in dispute. Thus, in Succession of Cloney, 29 Ann., 337, Grenon was placed on the account as an ordinary creditor for $350; he filed no opposition, .and some oppositions that were filed, were subsequently withdrawn, .and the account was homologated; whereupon, Grenon appealed. It was held, on motion to dismiss, that the amount of the fund to be distributed, and not the amount claimed by him. determined the right of .appeal; and there are many other cases to the same effect.
Under the Constitution of 1879, the question was presented in the •case of Renshaw vs. Stafford, 34th Ann., 1138, where an opponent claimed $1,000, out of a fund of $12,500. The court, at first, held that it was without jurisdiction, and the case was dismissed. Upon, rehearing, however, the following views were expressed by Mr. Justice Todd, as the organ of the court, to-wit: ,
*1043“A careful examination of the authorities bearing- on this point “ satisfies us that we erred in our previous decree, dismissing the “ appeal for want of jurisdiction.
“By Article 81 of the Constitution, this court has jurisdiction, “ ‘when the matter in dispute, or the fund to be distributed, whatever “ may be the amount therein claimed, shall exceed $1,000, exclusive of “ interest.’
“That part of the article relating- to the ‘fund to be distributed’ was ■“formulated to correspond with the jurisprudence on the subject, “ settled by a long line of decisions of this court. These decisions we “have diligently reviewed, and find that the question of jurisdiction “ on this point, in such cases, is controlled by the amount of the fund “to be distributed; that this constitutes the object of dispute; that if “ the entire fund is claimed by one party, and that sum exceeds the “ amount required to give j urisdiction, that the jurisdiction vests, “ though only a part of that fund is claimed by the other party, and “that part is below the amount which, under other conditions, is “necessary to give jurisdiction. In such a contest, it is considered “ that a question has arisen that involves the distribution of the ' “ entire fund, one side demanding the whole of it, and the other deny- “ ing such right, leaving for decision how the fund is to be divided, “ and how disposed of. The decisions are uniform in support of this
"view. 8 L., 167; 11 L., 462; 2 Ann., 190; 29 Ann., 327; 30 Ann., 625;“ 31 Ann., 453.
“In a recent case decided by us, Succession of Duran, not yet "‘reported, the majority of the court did not think that the decisions “ above cited were applicable to that case, inasmuch as, by the effect “of a prior judgment, not appealed from, homologating the account ■“ and ordering the distribution of the fund wherein not opposed, the “ dispute had been restricted to a sum remaining much below the “ appealable amount.
“Our previous decree, dismissing the appeal, should therefore be “ set aside.”
The case thus decided is one of the cases referred to by the court in the case of .Liquor and Tobacco Company, Limited, in Liquidation, 49 Ann., 1455, upon which the mover relies, and both cases differ from the instant case, in that, in both cases, when the judgments homologating the accounts, so far as not opposed, become final, there was but ■ one opponent before the courts, respectively, claiming less than the *1044appealable amount, and, hence, as it was held, no concurso, whereas, in the case now under consideration, when the judgment ordering the distribution was rendered, there were a number of contestants whose claims affected the entire fund, and amounted to considerably more.
We, therefore, find no good reason for changing the ruling heretofore made upon this motion to dismiss.
Another motion was presented, upon the day upon which the case-was called for trial, upon its merits, on behalf of Mrs. Widow James Fahey, one of the creditors of the insolvent, to dismiss the appeal of the city of New Orleans, upon grounds which have been already stated. This motion involves a question of fact, which, if we considered that the interests of justice required it, would necessitate the remanding of the ease. Rut, as the case has been, in the meanwhile, argued upon its merits, and as, upon the merits, we have reached a conclusion adverse to the appellant, no good purpose could be sub-served by remanding the case in order to solve the question — has the-appellant acquiesced in the judgment appealed from ? This motion to-dismiss is therefore denied.