Whitney v. O'Bearne

Martin, J., delivered the opinion of the court. The defendants being absentees, Lucius C, Duncan was appointed their curator ad hoc. The plaintiffs suffered a non-suit, and the court on motion of Duncan, allowed him one thousand dollars for his services in the case. The plaintiffs appealed. This case differs from that of Pontalba vs. Pontalba, 2 Louisiana Reports, 466, only in this; that in the latter, judgment was given in favor of the defendant’s curator against the plaintiff herself. In the present case, the judgment in favor of the curator is given against the defendants, but the plaintiffs are ordered to advance the amount of the judgment with a reservation of their right to recover the sum so advanced, from the defendants. In the case of Pontalba vs. Pontalba, we held that the plaintiff was not bound to remunerate the curator for his trouble. That his remuneration, if he were entitled to any, must come out of the estate of the person whom he i represented. In a later case, we held, that a curator could not have any allowance made to him for his trouble, otherwise than con- , . i tradictonly with the person whose estate or interests he represented. See the case of Cooley vs. Beauvais, 9 Louisiana Reports, 85. The decision now under consideration violates the principle settled in the latter case, and does injury to the defendants, in condemning them to pay a sum of one thousand dollars to the curator, without their ever having been cited, or having [268] ibe opportunity to be heard in their defence ; and this too, in a case in which they are not otherwise represented, than by person in favor of whom the allowance is made. The case under consideration violates the rights of the plaintiffs in . 01 imposing on them a forced loan, in compelling them to pay a sum of money in discharge of a void judgment pronounced against a person who was not cited, thus giving them an illusory subrogation to the curator’s right. - It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates, in favor of the curator cf,d hoc, against the appellants, be annulled, avoided and reversed, and that he pay the costs of the appeal.