Fowler v. Boyd

| La. | Mar 15, 1838

Martin, J.,

delivered the opinion of the court.

This is an application of the wife to be authorized to sell several lots, part of her paraphernal estate, the husband having refused to authorize her. He was cited to appear, and pleaded that there was no necessity for the sale of the lots, and that he had an interest in them, the wife by the marriage contract having made a donation to him of all her property in case he survived her.

The district judge doubted his authority to authorize the wife, but finally did so. The Louisiana Code, 127, provides, that if the husband refuses to authorize the wife to contract or sell her paraphernal estate, she may do so with the authorization of the judge ; 2367.

The Code used the definite article, the, without any reference to a particular judge. This is what created a doubt in the minds of the District Court, It has been urged here, that this judge is not that of the Court of Probates, whose jurisdiction is expressly limited to a number of specified cases, under none of which, this application of the plaintiff comes; Code of Practice, 924, 925; that it cannot be the judge of the Parish Court, whose jurisdiction does not extend to cases involving like the present, property of the value of upwards of thirty thousand dollars: hence the District Court alone must have cognizance of the application.

It appears to us, the District Court erred. When the court speaks of the judge, indefinitely, that of the domicil of the party must be intended; id est, the parish judge. That officer, as judge of probates, has under his protection all those persons who are incapacitated to attend to their own concerns, either absolutely or without the aid of a judge, as minors, interdicted persons, absentees, married women and' idiots. It is 'not necessary that he should always be applied to, to yield his aid in court; he often does so at chambers. It is true, his jurisdiction'in the Parish Court is . • 7 J limited m other parishes than that of New-Orleans, to cases in which the matter in dispute does not exceed three hundred dollars. But this, in our opinion, does not prevent him from affording his aid out of court, to persons who are under his • ¶ , . • Special piotection.

^ife^desh-ous to sell her para-phernal proper-iy, and the hus-authorization,*118 ^ie ™“st judge in the parish in which she hasher domicil, tract.

The wife ought to have made an application to the judge of the parish in which she has her domicil, to wit: that of Jefferson.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the petition be dismissed,’the petitioner paying costs in both courts.