State v. Judge of the Parish

| La. | Apr 15, 1834

Bullard, J.,

delivered the opinion of the court.

This is a rule to show cause why a mandamus should not issue commanding the judge of the parish of Orleans to appoint a tutor ad hoc to the minor children of Louis Even and Angela Everhart, his wife, in order to protect the rights of said minors in a suit pending in the Parish Court, in which they are co-defendants with their father and mother.

The judge shows for cause of refusal to make an appointment:

I. That the said Angela Everhart and Louis Even are both living and present in this city and parish.

II. That no tutor can be appointed to children whose father and mother are both living, and in the same place with them.

III. That the father, during marriage, is the administrator of the estate of his minor children.

IV. That if no regular tutor can be appointed, a tutor ad hoc cannot be.

During the MÍé^nímothunknmralo1’ tiie law. Minor children are then subjected exclut0 ^|¡¡?rt’er"h0 iKrrtyci°Mrc» “nd ^boumTio théírperson” an” courts of justice cannot deprive the father of any part of his augé°[jon oYcteSu £™’tex“ ofguar” ”fSthehch”drcn!ts m 0f uuor poS/s“%hatCStho' ”eTwilhantutorl

This court is perfectly satisfied with the cause shown. 1 J During the lifetime of both father and mother, tutorship is unknown to the law; minor children, during that period, are subject exclusively to the paternal authority. The father administers the property of his minor children as usufructu- . ary, and is bound to protect them in their persons and rights. The courts of justice have no power to deprive the father of any part of his authority at the suggestion of creditors, under the pretext of guarding the interests of x a children. The appointment of a tutor ad hoc, i. e. for a special purpose, presupposes that the minor is unprovided with a tutor. But it is urged, that in cases where the interests of father and. child are opposed to each other, and where the father may be tempted to sacrifice those of his child, the courts ought to appoint a special tutor for his pro- ° x x tection. The court cannot perceive the force of this reason, A If the power of the tutors ad hoc he confined to the mere defence of a suit brought against the child, then the only eflfect of such appointment would be to prevent collusion between the creditors and the father, which is not easily presumed. If his authority should continue after judgment, rendered against the child, how could he provide for the payment of it without recurring to the father, who is the only legal administrator of the property of his child? And if the property should be sold to satisfy the judgment, and a balance remain in the hands of the tutor ad hoc, he would be accountable for it to the father. To confer such authority on a tutor ad hoc, would be indirectly to deprive the father of his legal right to administer the property of his minor children, and to interfere with the paternal power, in a manner not recognised by law.

It is, therefore, ordered, adjudged and decreed, that the rule be discharged.