12 La. 575 | La. | 1838
delivered the opinion of the court.
The appellee, under an appointment from the Court of Probates as curator ad hoc, instituted the present proceedings to remove the defendant from the tutorship of her minor grand children, and to cause her to render an account. She set up as an exception that, a curator ad hoc could not be appointed in the case before the court, there being an under tutor legally appointed for the minors to wit, John S. Lewis, whosé duty it is to act for said minors, whenever their interests are in opposition to those of the minor.
The court, in our opinion,"erred in overruling this exception and proceeding further in the premises. The Code of Prac- . . _ f , _ i i . , , , trce provides that the judge, when made acquainted with the facts rendering it proper to remove a tutor, if he thinks there is probable cause for removal, shall direct the under tutor to . prosecute his removal; or if the minor has no under tutor he shall then appoint a curator ad hoc to commence the action. Article 1015,$1016.
The minors, it is shown, had an under tutor, and consequently he alone could be authorized to act.
The appellee contends, that article 1018 authorizes any heir, creditor or other person concerned, to provoke the remo-i r . f , , , „ . , . val of curators of vacant estates and of absent heirs, testamentary executors, or other administrators of estates, and that tutors may well be embraced under the general descrip- • f . . ° ,r lion of administrators. We are of opinion that the special 'provision in relation to the removal, of tutors is not modified by this latter general provision.
The intervention of one of the minors after her emancipation by marriage pending the suit, cannot in our opinion cure this nullity. The appellee being without authority under a void appointment to prosecute the removal of the tutrix, could
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed; and it is further ordered, that the suit be dismissed with costs in both courts. n
