*1
CO. v. MASUR
AMUSEMENT
SAENGER
provisions
of Act 49 of
with the
5.
appointed
<&wkey;8l Minors;
Infants
—
for
not
oath.
required
infant
to take special
defendant, Dalche, pay
costs of this
1918, an
Under Act No. 219 of
application.
appointed defend-
hoc for
required
ant is not
or to take
Judgment
<@=^126(4)
6.
prove
must
—Plaintiff
every element,
701)
(104 So.
Plaintiff, suing
partition
estate,
for
of real
entered, must,
in which default was
under Code
25051.
No.
812, prove every
Prac. art.
essential element
dеmand,
on confirmation of default.
Inc.,
CO.,
AMUSEMENT
et al.
MASUR
<&wkey;55(2)~Ownership
l'. Partition
legation
27, 1925.)
(April
partition.
for
Staff,)
(Syllabus
every petition
Editorial
by
for
curator
ad
i&wkey;77 Minors;
Infants
1.
—
infants
&wkey;>84Minors;
8.
law does
permit
—
and tutrix
where minor
appointed
propеrly
anything.
to waive
absentees.
permit
in-
The law
does
by
tutrix
both
Where
fant absentee to waive
and will not*
suit for
the time
minor were absentees
hold his
to same
219 of
under Act
tion
his actions as for actions of an
em-
properly appointed
minor.
ad hoc
a curator
ployed
objectionable
9.
&wkey;>84Minors;
Infants
evi-
—
óf under-
<&wkey;77 Minors;
Infants
—
dence, offered on confirmation
not-
cura-
does not prevent
though
objected
considered,
to,
whеre
minor.
tor
hoc for absent
ad
minor defendant
curator.
by
Where
for,partition
estate,
In suit
in which
against minor,
suit for
when
a curator was
for an absent minor
properly appointed a
defendant,
and default
evidence of
notwithstanding pres-
represent absent
ownership, consisting of statement
counsel
parish, in
view of Rev.
undertutor
ence of
as to what officialrecords indicated
Code, art. 275.
Civ.
ownership, though
objеcted to,
support judgment against minors,
objec-
not
tion
<&wkey;7!5(2)—
Affidavit form-
and error
Appeal
could
thereto
waived
ing
filed before
part
judgment,
O’Neill, X,
Rogers
not considered.
Paul, JX,
O.
and St.
dissenting.
judg-
from
(cid:127)An affidavit on
against
minor, represented
ment
by
absent
entered
hoc, alleging that
and his
Appeal
Court,
Sixth
Judicial District
temporarily absent,
cannot
tutrix were
be
record,
Ouachita;
Odom, Judge.
Parish
Fred M.
affidavit forms no
where
not filed before
Action
Com-
cannot have effect
overthrow-
pany,
Inc.,
Mrs. Clara
ing appointment
others. Default
named
<&wkey;>lll Minors;
Infants
remedy
—
ment based on
aside,
service on
null
appeals.
set
Reversed and
fendant
direct
rec-
action
remanded.
show its
invalidity.
Theus,
Stubbs,
Thompson,
Where record does not
disclose
Grisham &
in-
to
judgment
of curator
appellant.
Monroe, for
valid,
on
by
rendered based
service Hudson,
Sholars,
Potts,
Bernstein
is,
'
аppellee.
direct action to annul
REPORTS
74S
contradictorily
Plaintiff,
WESTERFIELD, Judge
the
or tutor
hoc.
under article
suing
real estate
certain
pre-
Code,
requiring the oath
the Civil
Monroe, alleges
situated
scribed
that article of
Code.
ordering
interest and
erred in
district court
one-half
an undivided
partitioned,
proceeds
sold
*2
Joy
E.
Charles
the
Masur and
that
any proof
ownership in the
the absence of
of
one-
Garretson, are
owner of a
each the
plaintiff or either of
defendants.”
the
sought
be
the
fourth interest in
assignments
The
re-
first four
of error
Joy
and
partitioned;
that the minor
appointment
late
the
to the
of
tutrix, Mrs. Clara
natural
her mother and
necessity
giving
of his
bond.
living
of
state
in
absentees
the
alleged
to-
We shall discuss these
errors
York,
E.
minor Charles
that
the
New
and
gether.
natural
mother and
Garretson and his
previously
[1] The fact that the court had
trix,
Mary
Smith,
Mrs.
F.
аre residents
appointed a tutrix and undertutor did not
appointment
parish
Ouachita. An
the
propriety
appointment
affect
the
Joy
minor
a
curator ad
the
for,
hoc;
the tutrix
Wolf
if
asked,
signed
was
order
Masur was
and
so
and the minor were
capacity
appointing Adolph Wolf in that
alleged
at the
the
was
may
directing
oath as
him
and
take
“to
petition,
appointment
the
upon
required by
minor
law.” Service
proрer.
sworn
was
allegation
Act
The
Wolf,
Joy
Adolph
through
Masur was had
petition
to that effect in
was
upon
E.
and
justify
appointment,
sufficient
and
through
natural
mother and
his
Garretson
disprove
nothing
there is
before us 'to
Smith,
through
tutrix,
L.
II.
also
and
pleadings
behalf
No
filed on
cotutor.
were
[2] Nor
under-
Joy
exception to
Masur. An
minor
any
prevent
parish
tutor in the
reason to
minor
275,
Garretson
was filed
citation
Art.
cotutor,
through'
C.,
his tutrix and
R. C.
authorizes
act
thе undertutor
appear
makes
do
way.
any
so whenever the interests of the minor con
tutrix,
A
due course
default was
have
flict
those
but we
judgment
authority,
or-
rendered
was confirmed and
know
been
directed to no
dаys
dering
there-
support
proposition
A few
sold.
of none
suspensive appeal
a
was taken
stand
an undertutor
defend
suit and
¡¡¡¡
Masur to this court.
behalf of
alleged
(assuming
is not
state
leaves
grounds:
upon
following
dеparture
permanent
be erroneous
functus officioafter
minor’s
mother
appointing
judge
“(1)
The district
erred
tutrix).
Victoria
a
qualified
For-
tutor and
See In re the minor
a minor when
a
undertutor had
been
tier,
,
31 La. Ann. the samе court.
[3,4]
allegations,
appointing
“(2)
erred
The district court
only tempo
were
tutrix and her ward
ad hoc for a minor with
under-
present.
they
rarily
appear
absent from
state
“(3)
appointing
The district
erred
apрeal supported by
petition
af
a minor whose natural tu-
ad hoc for
the reason
fidavit cannot
temporarily
absent.
(cid:127)
competent
rendering’
affidavit,
evidence
district court erred in
AMUSEMENT CO. v. MASUR
upon
invalid,
ment.
not have the
tor ad hoe for minor
quired
essarily
sary
ror
take
of default was
evidence to
quote
familiar
jection
undivided one-fourth
counsel,
ship
official records
Y. S.
several
But
Amusement
half interest
Charles
and,
a
of
destroying
make a
each
“In
There remains
[5] No
strip
[6,
all,
feet;
be'fore
7]
this
&
service
his evidence
feet
forms
the effect that
grounds
course,
E. Garretson and
an eminent member
oath
before the
ease,
ground
the value
contended
on Second
Railroad,
Company.”
support
between De Siard
Company
at law
as well
direct action
obvious that
"disclose the
upon
records
which
should
indicate
too
Sо.
property,
the last
appointment.
in kind
necessary,
in full:
property,
as to
confirmation of default
interest
such curator
apparent
Second street
as
*3
testimony
manifestly impossible
owns
street,
show
therе
defendant
Jefferson
by appeal,
as
Joy Masur,
objectionable upon
overthrowing
assignment
considered.
portion
an undivided one-
with a
opinion
and each
Where the rec-
absence
for discussiоn.
for under
street
this
statement
street,
has
insufficient
plaintiff’s
coming
therefore
absolutely
bar.
property;
as cura 529.
depth
the
and
Saenger
Mabry,
own
a front
owner
neces-
what
I am
can-
nec-
Act art.
We
re
ob
er-
or
an
to
to
1Saenger
wise
is a
permits
title to real
termitting
siderations enter the
been made
mand
that was held
qua
every
in the record? The
Huber v.
this
always
that each
vided
counsel,
as
interest
fact
records.
are minors
sue. C.
What,
[8]
prove every
its face it
for the actions
express
law
of its
non. Counsel
unquestionably
312; Bayhi
inadmissible,
liberal extension of
one-half interest
same
contested,
witness
P.
in this
Amusement
then,
Huber,
issue.
allegаtions
But
only
and will not hold
issue in
admission without
art.
to its introduction. Other
prohibition
consideration of evidence
confirmation
estate
Bayhi
partition proceedings
312; Bryan’s
“the
is the evidence of
presents
claim to consideration which
discussion of
property.”
no
represented
permit a
this case
where no
records
But
of an
Company
more
says ownership
equation.
of the
Huber Case was
parol.
statement of
undivided
that,
true
element
E. Garretson
than
curator to
Adm’r
show that
the defendants
objection. Up
Saenger Amusement Co. v. Masur
104 So. 701
La.1925Check TreatmentAI-generated responses must be verified and are not legal advice.