Roman v. Roman's Minors

4 La. 202 | La. | 1832

Mathews, J.,

delivered the opinion of the court.

This suit is brought against the tutor of minors to recover from the succession of their mother a certain sum of money, which the plaintiff alleges to be owing and due to her from said succession, and which the defendants are bound to pay in consequence of having accepted it.

The tutor excepted to the jurisdiction of the District Court. His exceptions was sustained, and the judge a quo ordered the cause to be sent for trial to the Court of Probates of the Parish of St. James. From this judgement the plaintiff appealed.

We are of opinion that the court below did not err in declining jurisdiction of the cause. Part of the heirs being ° J ° minors, the succession could not be by them or tor them accepted without the benefit of an inventory, and consequently should he administered under the authority of the Court of J Probates where it was opened. The present is a claim for a certain sum of money, and according to the I3th section of act 924 of the Code of Practice, Court of Probates, have exclusNe jurisdiction to decide on claims of this kind. The court helow erred (it is believed) in assuming the power to trans-n . ..n , , i c fer the cause to the Court of Probates. We know of no legislative enactment which authorizes such a proceeding, and the obiter dictum in the opinion pronounced in the case of Tabor vs. Johnson, 3 Martin N. S. p. 682, relied on by the appellees, cannot justify the course adopted by the judge a quo in the present instance, if it could in any case. The appellants have required in their answer that the judgement of the District Court should be amended in this respect, which must be done.

Debliewc, for appellants. Seghers, for appellee,

The 13th section of the act of 1828 relied on by the counsel of the plaintiff, is clearly not applicable to a case like the present. It provides only for cases wherein partition of successions has been made previous to the institution of actions against heirs (as therein authorized) in the district courts. This section of the act seems not to differ essentially from the article 996 of the Code of Practice which relates to proceedings against heirs who are in possession of estates, &c.

It is, therefore, ordered, adjudged, and decreed, that the part of the judgement of the District Court which declined jurisdiction of the cause be affirmed; and it is further ordered, adjudged and decreed, that the order of said court to transfer this suit to the Court of Probates be annulled and set aside, and that the present action be dismissed at the costs of the plaintiff and appellant in both courts.