Pontalba v. Pontalba

Mathews, J. delivered the opinion of the court. In this case the plaintiff obtained a decree in the court below, by which her right to possess and administer certain property, chimed as paraphernal, was recognized. But as the suit vvri-i considerad unnecessary, and consequently vexatious, as the attorney in fact of the defendant, had offered previously to do amicably all things required to give her possession of her paraphernal property, the judge a quo condemned her to pay the costs, and amongst the items as constituting costs, one of 500 dollars is found allowed to H. R. Dennis, Esq. who was appointed curator ad hoc for the de 467 fendant, who resides withourthe jurisdiction of the State. The plaintiff acquieses in the decision of the Parish Court, in all things, except that part of the judgment which condemns her to pay this allcwance to the curator appdinted to defend the suit against her, and from this she appealed. Eastern District June 1831. A curator ad hoc is intended by law as a protector to the, interests of the absentee, and should be considered as principally beneficial to the defendant, and consequently the plaintiff in such a case is nOt bound to pay for services rendered by the curator, - nba appcua~3neat of the eaxator ad hoc (as this office is de-nom2netcd by ~lc u~±;~~ na Code,) ~zas provoked by the institut;o,~ of ;hc suit, as ne!ng necessary to enable the plaintiff to prosecute her claim. An officer of this kind is, nevertheless, intendcd by law as a protection to the interests of the absentee, and should be considered as principally benefi&3l to the defendant; and consequently, the plaintiff in such a case, is not bound to pay for gervices rendered by the curator. Any other person may be appointed as well asan attor-n ey at law, and would have no right to claim any thing a~ taxed costs, when the curator, as in the present case, is alsc an advocate, regularly licenced to practice in the different courts of the state, he may claim the fee allowed by l~w, a~ in any other casa, wherein he might succeed in throwing th€ costs of suit on his adversary; but as to any extra compensa-tiori to which he may be equitably entitled for services ren-dared, his remuneration should be allowed out of the funds of the person whom he represents. The case cited from 3d Martin, p. 364, we do not think applicable to the present. There the compensetion was granted to the attorney of an insolvent, in consequence of an opinion then entertained by the court, that his services might fairly be considered as ha-ing operated ~a benefit to the whole~ mass of creditors. The examples cited of judgments favourable to the defensors appointed in attachment cases, we consider equally inapplicable to the subject now before the court. The remuneration allowed in such cases, is always taken from the funds of the defendants. From the best view we have been able to take of this cause, our opinion is, that the Parish Court erred in allowing to the curator ad hoe the sum of 500 dollars, claim-ad by him as costs against the plaintiff. 468 It is therefore ordered, adjudged and decreed, that the judgment of the court below, be in this respect avoided, reverted and annulled, and that it be affirmed in all other matters, allowing to the attorney for the defendant, his legal fees to'be taxed according to law, if any be allowable, reserving to the defendant, Pontalba, his right to appeal.