On Motion to Dismiss Appeal.

Tlie opinion of the Court was delivered by

T. L. Broussard, one of defendants and appellees, moves to dismiss the plaintiff’s appeal, for the reason that, since the death of the defendant U. A. G-uilbeau, the contestee for the office in controversy, his daughter, Anita Gnilhoau, one of his heirs, has not been legally cited as appellee, by means of citation to the surviving widow of the said deceased, and as tutrix of the children of their marriage — as said Anita was united in marriage with Charles Delacroix on the 34th of January, 3886, antecedent to plaintiff’s petition for appeal *726on the 7th of May, 3876; and he charges this neglect to have been the plaintiff’s fault.

The citation of this heir, in our opinion, was an unnecessary formality, because she was not a necessary party to the appeal.

The gravamen of the dispute is the election vel non of plaintiff, to the office of sheriff of the parish of St. Martin in 1884. The heirs of defendant certainly acquired, by their ancestor’s death, no right to the office in controversy — whatever may be said with regard to the fees and emoluments thereof, an office is not a heritable right or property.

The defendant and appellee, T. L. Broussard, holds and claims the right to exercise the functions of sheriff, by virtue of an appointment of the Governor to fill a vacancy therein, which was occasioned by the death of the contestee, U. A. Guilbeau, who was theretofore returned elected.

He was duly cited and we think properly. In fact, he was a party to a previous appeal iu'this case—37 Ann. 730, Halphen vs. Guilbeau and Broussard.

Motion overruled.

On the Merits.

The origin and facts of this case are succinctly and fully stated in our previous opinion in 37 Ann. 730, Oscar Halphen vs. U. A. Guilbeau and T. L. Broussard, which was a suit to have reconstructed and reinstated the lost records therein, which right was recognized.

At the November term, 1884, Fred Gates, Judge of the Twenty-first Judicial District, on the suggestion of counsel for T. L. Broussard, entered an order of recusation and selected and designated Conrad DeBaillon, Judge of the Twenty-fifth Judicial District to try the same; and on the 4th of December, 1884, he was called upon to preside and proceeded with the trial thereof, and certain exceptions were filed. While same were under consideration, the court was adjourned from day to day upon the order of Judge Gates, so as not to interfere.

Thereafter various proceedings were taken in the suit — too numerous and conflicting for particular detail — which culminated in the dismissal of plaintiff’s suit, and the said appeal in February, 1885, was the sequel.

Subsequent to the decision of the issues raised in that appeal plaintiff, through counsel, applied for and obtained an order to be signed by C. DeBaillon, Judge of the Twenty-fifth Judicial District “at chambers at Lafayette, La., this 3d of September, A. D. 1885,” to the effect that, as nine months had elapsed since said suit was assigned to him for trial, *727that same “be and the same is hereby transferred to the Thirteenth Judicial District Court in and for the parish of St. Landry, the judge of which court is competent to try the same.”

In State ex rel. Fontelieu vs. Conrad DeBaillon, Judge, etc., 37 Ann. 392, this Court said : “Under Act No. 40 of 1880, which regulates the manner of trying recused cases, the recused judge is stripped of all control over the case, which is transferred, in its entirety, to the judge selected to try the same.

“If nine months elapse after recusation without a trial, the cause must then he transferred, to the district court of the nearest parish of an adjoining district, the judge of which is competent to try the cause.

The order must emanate from the judge first appointed to try the case, who alone has the legal authority to malee the seme.”

In State ex rel Gates vs. Beattie, Judge, 38 Ann.-, unreported, this Court recently held: “ In case of such transfer of the suit, the judge of the court to which the transfer is made, has as full and complete authority and jurisdiction over the same as if it had originated in that jurisdiction.”

The order transferring the case in this instance, did not emanate from the judge first appointed to try the case. It is perfectly true that Conrad DeBaillon, Judge of the Twenty-fifth Judicial District, had been called by Judge Gates to go into the Twenty-first Judicial District and trythe case. This he did. In so doing, it was by virtue of his authority to exercise the duties and perform the functions of judge in that court. While he thus exercised them, the judge of that district was fwncius oficio for the time being. This is fully illustrated by the fact that during the time Judge DeBaillon was engaged in the trial of the case, Judge Gates ceased to perform the functions of his office. The order purporting to transfer this cause from the parish of St. Martin, in the Twenty-first Judicial District, to the parish of St. Landry, in the Thirteenth Judicial District, executed by Conrad DeBaillon, Judge of the Twenty-fifth Judicial District, a.t his chambers, in Lafayette, La., was an absolute nullity, and wholly without, any effect in law, and did not operate the transfer of the suit thereto, and the judge of the Thirteenth Judicial District wras and is wholly without jurisdiction or authority over said cause, it never having been transferred from the parish of St. Martin, where it was filed.

J udgment affirmed.