HODGE'S HEIRS vs. DURNFORD'S CURATOR, 10 La. 497

Martin, J., delivered the opinion of the court. To a rule to show cause why a mandamus should not issue to the judge of the Court of Probates of the parish of New-Orleans, commanding him to allow an appeal in this case, Jhe answered, “ that the judgment intended to be appealed from is not definitive. Code of Practice, 539, 565. That the judgment does not cause irreparable injury to the party wishing to appeal it. Code of Practice, 566. That the judgment is only interlocutory. Code of Practice, 538.

The whole more fully appearing by an annexed certified copy of the judgment of the court, refusing the appeal.” The judgment appealed from, orders the curator to file into court within a fortnight, an account of the administration of Durnford, as the testamentary executor of plaintiffs’ ancestor. An interlocutory judgment of the Court of Probates, ordering a curator to account, may be relieved against, on appeal from such final judgment as may be rendered, and does not work an irreparable injury; it therefore cannot be appealed from.

The defendant’s counsel has contended that this is an extreme case, Durnford having entered on the execution of the will long before the cession of this country'to the United States; the succession of Hodge having never been opened in any court of the territorial or state government; the, executor having died several years ago, and his curator being without the means of presenting the account required, and being, consequently, liable to imprisonment, unless relieved by this court.

The succession of Durnford appears to have been opened in the Court of Probates for the parish of New-Orleans, and it is from the funds of that succession that the plaintiffs seek compensation for the injury alleged to have been done to them by the neglect of the executor to account. It matters not, therefore, whether any court of the late territory, or of this state, was ever seized of the testamentaria of their ancestor.

The judgment is certainly an interlocutory one, from which no appeal lies, unless it works an irreparable injury ; that is to say, such an injury, which, on an appeal from the final judgment in the cause, cannot be relieved against by this court. We must presume that the Court of Probates will be satisfied with such an account as the curator is- able to render under all the circumstances of this case. If, on such an account being rendered, the court proceeds to give an erroneous judgment, the path to redress is clear.

We are aware of the difficulty attending the rendering, contesting and settling long and intricate accounts, of several years standing, and of the utility of avoiding all those difficulties, when the rendition of such accounts cannot be legally claimed. But the case would be worse, if those who are entitled to demand such accounts could be delayed by an appeal, especially in the western part of the state, until their demands were fairly established in this court, and the case returned to the lower court for the rendition of the account. The rule must, therefore, be discharged.