6 La. 420 | La. | 1834
delivered the opinion of the court.
The plaintiff demands the partition of a lot of land in this parish, belonging to the succession of Moses Hook, and alleging that some of his co-heirs are minors, residing out of the state, caused a curator ad hoc to be appointed by the court to which the petition is addressed.
The curator thus appointed, filed, 1st, an exception to the jurisdiction of the Probate Court; 2d, that a curator ad litem should have been appointed, and not a curator ad hoc; and 3d, that no family meeting had been prayed for in the petition.
The court sustained the plea to its jurisdiction, and the plaintiffs appealed.
By the article 924, No. 14 of the Code of Practice, it is declared that Probate Courts have exclusive power to ordain and regulate all partitions of successions in which minors and persons interdicted or residing out of the state are interested. If the question depended on the Code alone, the court would have not only jurisdiction, but exclusive jurisdiction of this suit. But it is contended that this jurisdiction has been taken away by the act of 1825, page 122.
The section of the act relied on, declares that the District Court shall have jurisdiction of all suits for the partition or sale of any property laying within their respective limits, and held in common by several owners, notwithstanding any or
q^is secti0n~does not contain any words from which we should infer that the legislature intended to confer exclusive jurisdiction on the District Court in cases like this. Admitting, for the sake of argument, that the 224th article of the Code, and this section of the act of 1825 refer to the same class of cases, nothing more would follow, than that the two courts _ . have concurrent •jurisdiction. 1 he plea in this case cannot J x be sustained, unless the Court of Probates has been entirely J ^ ousted of jurisdiction. We are of opinion that it has not been, and that the court erred in sustaining the plea.
This view of the subject renders it unnecessary to inquire whether the above mentioned act of 1825 has been repealed by the act of 1828, section 25.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be avoided and reversed, the exception to the jurisdiction overruled, and that the cause be remanded, with directions to the judge to proceed therein according to law, and that the appellee pay the costs of this appeal.
