Succession of Platz

Citations

• 122 La. 14
• 47 So. 119
• 1908 La. LEXIS 401

Syllabus

<p>EXECUTORS AND ADMINISTRATORS — REMOVAL oe Executor — Appeal—Partition—Right to Dismiss oe Own Motion — Sequestration-Mandamus.</p> <p>Relatrix as one of the heirs of her mother brought.suit to have the testamentary executor of her will removed from office and a partition made of the succession property between herself and her coheirs. In her petition she prayed that the court order a sequestration of the property of the succession. The application to that effect was granted ex parte and without bond. By consent the question as to the removal of the executor was taken up separately; evidence was heard, a judgment was rendered on the issue raised. The trial court refused to remove the executor, simultaneously set aside the sequestration, directed the return of the property to the executor and that he resume his functions. Plaintiff applied for a suspensive appeal from that judgment which was refused. Subsequently the partition proceedings were taken up. The plaintiff prayed for a continuance which was refused, and she then moved to discontinue the partition. The court refused to grant the motion to the prejudice of the rights of other parties to the suit. Plaintiff then applied to the Supreme Court to mandamus the trial judge to compel him to grant a suspensive appeal from the first judgment an'd for a writ of prohibition preventing him from taking further action in the partition proceedings.</p> <p>Held, no legal ground is shown for a mandamus. There is no suspensive appeal from a judgment refusing to remove the executor. The action of the court in setting aside the sequestration gave relator no right to a suspensive appeal therefrom. It was not a sequestration issued under articles 269 et seq., and article 276 of the Code of Practice, but substantially one granted ex officio by the judge ancillary to and in aid of that proceeding. When the demand failed the incidental conservatory order failed also. Succession of Rose, 48 La. Ann. 423, 19 South. 450. For reasons