*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 59 So. 44. However ab,y owns an suit, objection has property and admitted, rule his actions one-fourth conclusion upon the La. point), example, puts Spruell, learned case at public other- at waive C. undi Ann. (pre- cites con- sine law All all is- REPQRTS 752- might employed case of In whatever other be its under to circumstances, Insurance ‘at all. Traders’ Bienvenu v. Factors’ cannot be considered stating Co., court, objection supplies law all but appel legal evidence, failure of rule to be transcript amounted lant curators file are concerned which appeal to an of the waived. abandonment .be renewed, litigation course, parties said: afterwards be Of to this could not all and, good faith if we consider hoc, appearing as “The cited litigants court, interests material under of the binds sphere and within the the absent defendant controversy, this we would functions; scope has suggestion follow affirm counsel’s we power any of no to waive or tо abandon as we think are inclined rights prosecuted If Mr. had of the defendant. Forman appeal took, which he purchaser with counsel that would have been bound the decree rendered tion sale would the title with our appeal. suspen- on the which was approval. give sanc- But we are unable sive, was dismissed because failure of the n transcript time; and, legal principles af- file the Forman tion Mr. involved in employed Morris, had been the failure in this his firming We from. respect would, under article 594 however, comforted, the reflection already P., cited, of the O. and the authorities no interested this decree abandonment, one considered appellant had not himself filed the tran- injured in material sense—a result script time; appeal could not have the exercise does not follow But, been renewed. Mr. Forman judicial function. attorney, but ordinary word, sense of the simply attorney hoc, assigned, or curator ad reasons description designed show, as this appealed from is reversed and set aside the defendant Morris cannot be considered as remanded, proceedings for further having though right appeal; and, abandoned his right appeal suspensively ex- herein inconsistent views longer existed, lapse time, because of the pressed. appeal. pay Plaintiff to the cost of right Morris had devolutively, abey- The cost of the lower be in person.” done, he has final ance until the decision of the case. City Ry. Co., In Jacobs v. Kansas & G. S. 64 So. the court held that O’NIELL, J.,C. dissents. the waiver of citation a tutor hoe was ROGERS, J., opinion being dissents, beyond powers judgment appealed from should be partition proceeding based on such waiver of affirmed. subsequent ‍​​‌‌​‌​‌​​​‌​​​‌​‌​‌‌‌‌‌​​​‌‌‌​​‌​​​​​​‌​​​​​​​​‍citation and sale of J., THOMPSON, recused. under such was an nulli- absolute subject ty, attack, to collateral PAUL, (dissenting). notwith- I ST. J. think standing railway company the defendant evidence of title was sufficient under *4 possession had been in Goodin, more than five See circumstances. Brander v. years. Taylor Hancock, 521; La. Ann. follows, therefore, [S] Scott, the evidence Ann. Yorke Ann. 55. administered I therefore dissent.