Winsberg v. Winsberg
| Decision Date | 08 November 1954 |
| Docket Number | No. 20104,20104 |
| Parties | Mrs. Mary L. Schneider WINSBERG, Administratrix, Plaintiff-Appellee, v. Mrs. Sarah Silverman WINSBERG et al., Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Montgomery, Barnett, Brown & Sessions, Arthur B. Hammond, Jr., New Orleans, for plaintiff-appellee.
Solomon S. Goldman, New Orleans, for defendants-appellants.
This matter comes before us on motion of appellant to strike from the record and give no consideration to the answer to the appeal filed by the appellee.
While the facts in the controversy are much in dispute, the facts, on which the motion to strike is based, are conceded. Jacob Winsberg died on May 8th, 1937, leaving an estate which contained certain immovable property, certain real estate, and a store which was operated as a going concern at one of the pieces of real estate. 4304-06 Magazine Street, in New Orleans. He left heirs, one of whom was his son, Hermand Woodward Winsberg, who died on February 25th, 1948, leaving as his heir a minor daughter, Kathleen Hilda Winsberg. After the death of Jacob Winsberg in 1937, his succession was judicially opened and his heirs were sent into possession of his estate. These heirs, in addition to Hermand Woodward Winsberg were: Mrs. Sarah Silverman Winsberg, Mrs. Stella Winsberg Levy, Mrs. Jessie Winsberg Bluhm and Winfred J. Winsberg.
Though the heirs were sent into possession of the estate of Jacob Winsberg, there was no actual physical division of the assets and this litigation results from that fact.
The widow of Jacob Winsberg and all of the heirs, except Hermand W. Winsberg, conducted the affairs of the estate, including the store on Magazine Street. After the death of Hermand Winsberg, which was on February 25, 1948, his widow, Mrs. Mary L. Schneider Winsberg, administratrix of his estate and tutrix of the minor daughter, Kathleen Hilda Winsberg, brought this proceeding against the widow of Jacob Winsberg and all his other heirs, praying that they be ordered to render an accounting of the estate of Jacob Winsberg and that they be ordered to turn over to plaintiff such amount as the accounting should show to be due.
Plaintiff alleged that Hermand W. Winsberg had never received his share of the 'income, emoluments, salaries and other perquisites of the estate' of the said Jacob Winsberg and prayed that the accounting take into consideration all such items of value of the estate and that it cover the period from May 8, 1937 to December 31, 1945. Plaintiff also alleged that such an accounting would show an indebtedness to plaintiff as tutrix of the minor in a sum in excess of $2,000.
On July 7, 1948, there was judgment in confirmation of default in favor of plaintiff ordering defendants to make a complete accounting of the estate of Jacob Winsberg for the period mentioned. This judgment was not signed, but on motion of defendants was annulled and set aside. Thereafter, on June 5, 1952, there was judgment in favor of plaintiff ordering the defendants 'to make and render a complete accounting of the real estate 4304-06 Magazine Street * * *.' This judgment was signed on June 11, 1952. In the judgment, no reference was made to any other items of property of the estate; the accounting which was required was limited to the real estate 4304-06 Magazine Street; it contains no reference to 'incomes, emoluments, salaries and other perquisites of the estate,' all of which were referred to in the petition which prayed for an accounting on all of them, and counsel for appellant points this out and says that, since the judgment did not require an accounting on these other items, it obviously denied the prayer of the petition to that extent.
At this stage of the proceedings, on August 13, 1952, defendants filed a document purporting to be an accounting as to the real estate 4304-06 Magazine Street as required by the judgment of June 5, 1952. In this document defendants asserted that they should not be required to file any accounting but they conceded that, if it should ultimately be held that an accounting was due as to the real estate mentioned, that accounting would show an indebtedness to plaintiff of $880.
On behalf of plaintiff there was then filed an opposition to this document or account, and in this opposition plaintiff referred to the judgment of June 5, 1952, and stated that in filing the opposition she reserved her right to appeal in due course from any part of that judgment.
On November 6, 1952, evidence was taken and thereafter counsel for defendants stated again, without conceding that plaintiff was entitled to any sum whatever, that the amount which would be due, if any accounting as to the real estate mentioned should be required, would be $1,460, instead of the $880, which was at first admitted. In this document appears the statement that it is filed 'without prejudice to the right of the defendants to appeal from any judgment that may be rendered herein * * *'. Counsel for plaintiff joined in this stipulation, stating that it was conceded that an accounting as to that piece of real estate would show that $1,460 was due but also stating that the stipulation was made 'without prejudice to the right of the plaintiff to appeal or cross-appeal in this matter.'
Based on this stipulation there was judgment, on November 7, 1952, in favor of plaintiff and against defendants in the sum of $1,460. This judgment was signed on November 14, 1952. On November 24, 1952, defendants appealed from this judgment devolutively and suspensively. The appeal was duly perfected and, on May 17, 1954, while the matter was pending in this Court but before it had been posted for hearing answer to the appeal was filed by plaintiff and in this answer it was contended that the judgment of June 5, 1952, which ordered the accounting, should have ordered an accounting on all of the other items of property, as well as to the property on Magazine Street. It is this answer which we are asked to strike.
It is contended by appellants that this answer to the appeal is in effect an appeal from the judgment of June 5, 1952, and that it comes too late--more than two years after that judgment was rendered.
Counsel for appellants assert that we have authority to strike such an answer from the record and that the authority should be exercised here because of the fact that if the answer be not stricken on the grounds urged, it will be necessary for all counsel to prepare and present lengthy arguments concerning the necessity of an accounting on those other items, whereas when the entire matter is submitted, we will conclude that appellee, having failed to appeal from the judgment of June 5, 1952, cannot be heard to contend that the accounting therein ordered should have included those other items and that thus they and we will all have undertaken a tremendous volume of labor unnecessarily.
Counsel for appellants points to the decision of our Supreme Court in Garland v. Dimitry, 164 La. 875, 114 So. 718, as presenting a situation very much like that which is found here and which he says is authority for the view that there could and should have been an appeal by the present appellee from the judgment of June 5, 1952, which, in effect, held that there should not be an accounting on those other items to which we have so often referred. In that case there was presented a dispute between two attorneys over the proportionate division between them of a fee and as to whether one of them should be entitled to a privilege. The plaintiff contended that the defendant, the other attorney, owed him one-half of the fee and he sued for an accounting and for recognition of his privilege. The District Court recognized the right to an accounting and fixed the percentage of recovery to which the plaintiff was entitled and ordered that an accounting be made but left the amount of the recovery open or, as stated by the Supreme Court, 'at least impliedly, for the purpose of the accounting and of receiving and considering the statement of accounts by the auditors.'
Defendant, who contended that no accounting was due, sought to appeal from the judgment insofar as it held that he should render an accounting. The District Court refused to grant him an appeal on the ground that the judgment was interlocutory and caused no irreparable injury. Mandamus was granted by the Supreme Court which hold that inasmuch as the judgment fixed a percentage of the fee, it was to that extent final and not interlocutory. The Court said:
Counsel says that if the reasoning used there be applied here it will necessarily follow that plaintiff has the right to appeal from the judgment of June 5, 1952, which impliedly denied the right to an accounting as to 'incomes, emoluments, salaries and other perquisites of the estate.' In other words, according to counsel it was held that there is the right of appeal whenever the judgment, which might otherwise be considered interlocutory, trenches upon the merits and he says that the judgment here did trench upon the merits since it denied an accounting on those items mentioned. As supporting this view Cary v. Richardson, 35 La.Ann. 505, is cited. There the Supreme Court said:
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