Bird's Heirs v. Black

Martin, J., delivered the opinion of the court. In this case, the brothers of William Bird, deceased, alleging themselves the uncles of his two minors, instituted a suit in the Court of Probates for the parish of East Baton Rouge, against the defendant, as under-tutor of said minors, praying his removal from office, on the ground of neglect of duty. The defendant pleaded an exception, averring that the plaintiffs had shown no right in themselves to sue, or any legal cause of complaint against him as under-tutor, &c.; and to the merits they pleaded the general issue. The judge of probates, on hearing the parties, was of opinion the grounds alleged by the plaintiffs, were sufficient cause for the removal of the under-tutor. He sustained the [84] action, and rendered judgment, removing him from office with payment of costs. The defendant has appealed to this court. To effect a removal from office of a tutor or under-tutor, for the causes authorized by law, suit must be instituted for that purpose by a curator ad hoc, appointed by the judge of probates. The right of the petitioners to institute this suit being denied by the defendant, it does not appear to us, that there is any provision in our law which recognizes this right. It cannot exist in every body, and there is nothing to show that it was ever vested in the petitioners. The Code of Practice is silent as to the causes and mode of removal of under-tutors, unless they are included in the provisions relating to tutors. In regard to tutors, the Code appears to have given to any one the faculty of communicating to the judge of probates, information of any circumstances authorizing their removal from office; but to effect this, a suit must be instituted for that purpose by a curator ad hoc, appointed by the judge of probates. A suit brought by a person without legal authority, would be nugatory and vexatious, because judgment rendered in favor of the defendant would not form a res judicata. We are therefore of opinion, that the Court of Probates, in this case, erred in its judgment dismissing the defendant as under-tutor. It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed; and the judgment of this court is, that the plaintiffs’ petition be dismissed, with costs in both courts.