(61 South. 727.)

No.. 19,429.

#### Succession of ST. DIZIER.

(March 31, 1913.)

*(Syllabus by the Oourt.)*

On Motion to Dismiss.

1.Appeal and Error (§ 797*) — Dismissal-Timely Application.

Where a motion to dismiss an appeal, on the ground that the transcript is not complete, is not made in time, the appeal will not be dismissed, unless the transcript is so entirely defective as to amount to an impossibility to decide the issues.

[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3149-3Í54; Dec. Dig. § 797.*]

On the Merits.

2. Executors and Administrators (§ 513*) —Account—Conclusive Effect.

An administratrix is bound by the account filed by her.

[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 2267-2291; Dec. Dig. § 513.*]

3. Executobs and Administrators (§ 510*) —Account—Appeal—Amendment of Judgment-Review.

Where an opponent to an account has not answered the appeal taken by the one who filed the account, and has not asked for an amendment of the judgment, the judgment will be affirmed as to him. Where parties to an account do not show wherein there was error in the judgment, the judgment homologating the account will be affirmed.

[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 2235-2256; Dec. Dig. § 510.*]

Appeal from Twenty-First Judicial District Court, Parish of Pointe Coupee; L. B. Claiborne, Judge.

In the matter of the succession of O.'Hi. Dizier. On the opposition of W. B. Thompson & Co. to the first amended provisional account. From the judgment, the accountant appeals.

Affirmed.

Albin Provosty, of New Roads, for appellant. Hewes & Smith, of New Roads, for appellee.

On Motion to Dismiss.

BREAUX, C. J.

[1] There are pleadings and testimony missing from the transcript. On that ground, counsel for the appellee has filed a motion asking that the appeal be dismissed.

The motion was filed over three days after the transcript was filed, and over three days after the first motion was made to fix the case for hearing.

The appeal might be dismissed if the transcript be so entirely defective as to amount *660to an impossibility to decide the issues of the case, but not on appellee’s motion, not timely filed.

The motion to dismiss is overruled.

On the Merits.

[2] The accountant must be held bound by the account she presented to the court. We are relieved from the necessity of giving consideration to any issues arising anterior to the filing of appellant’s petition asking to have reversed the judgment appealed from in those respects that it amends her account. The opponent, W. B. Thompson & Co., has not answered the appeal, nor asked for the amendment of the judgment homologating the account.

We have read the judgment approving the account, and have given consideration to each item, and found no error.

The creditors who may be affected as to their interests in the changes and amendments made to the account in the court below are not before this court complaining either personally or through the administratrix. Only the administratrix complains of the amendments. We think those amendments were correctly made by the judge of the district court.

[3] We have read the evidence introduced ■on trial of the opposition in the lower court. It shows that the administratrix is frail and delicate, not accustomed to business, and therefore- relied upon the advice of counsel .and on the partner of her late husband. If under their advice anything was done which should not have been done, it was not disclosed, and consequently we can only affirm the judgment. In matter of mere- details certain changes were made, and amendments. They will remain as they are, sustained by law and facts. Moreover, appellees, as before stated, are bound by the judgment. As to appellant, we have not found that he has good cause of complaint. The issues are of fact, and have been properly decided. We have found no error.

For reasons stated, the judgment is affirmed.