Chartier v. Police Jury

9 La. Ann. 42 | La. | 1854

Voobhibs, J.

The judgment appealed from is not signed by the Judge. The record shows that it was entered on the minutes of the Court on the 21st of June, 1852; and that a motion for a new trial was made by the plaintiff. Beyond this, the evidence leaves us to conjecture. It appears afterwards, on the 20th of October, 1852, that the plaintiff’s death was suggested by his counsel, on whose motion the Court appointed a curator ad hoc to prosecute this suit to final judgment. The curator ad hoc thus appointed, presented a petition to the Judge a quo, and obtained the order for this appeal.

The cases in which curators ad hoc may be appointed by Courts to represent parties in suits, are enumerated and specially provided for by law. Tfe are not prepared to say that this is one of the oases in which it may be done. In the case of McManus v. West, (18 L. R. 41,) where a similar appointment was made, the Court said: “ As the plaintiff’s death was suggested, and not being denied, it must be taken as true. It, however, does not justify the appointment of a curator to his heirs. If they were within the State, no curator could be appointed to them; and if absent, the Court of Probates possesses the exclusive power to make the appointment. Code of Practice, Art. 924, No. 4. The appointment being irregular, all the posterior proceedings contradictorily with him are equally so.” The article referred to declares, “that Courts of Probate have exclusive power: 4. To appoint curators to vacant estates and absent heirs.” That power is now vested in the District Courts, and most clearly has no application to the appointment of curators ad hoc. According to the principle thus laid down, we think it is obvious, that the curator ad hoc, in this case, cannot stand in j udgment, as the legal representative of the heirs of the succession of Jean Ohartier, deceased.

There is another objection which we consider equally fatal to the appeal. It has been repeatedly held by our predecessors, that, under the 546th Article of the Code of Practice, no appeal lies from a judgment before it is signed. We are, therefore, of opinion, that the dismissal of the appeal in this case is unavoidable.

It is therefore ordered, adjudged and decreed, that the appeal in this case be dismissed at the appellant’s costs.