Reynold's Curator v. Mahle

Martin, J., delivered the opinion of the court. The defendant specially denied the curatorship of the plaintiff. The latter introduced, as evidence of his appointment, a certificate of the judge of probates of the parish of Rapides, stating, that the plain tiff having rendered an account of his administration, for the first year of his curatorship, it had been prolonged for another year, on his giving bond and taking the oath, which he did. A bill of exception was taken t0 { jie admission of this certificate in evidence, which was- „ # 3 nevertheless received, and the exception overruled, . It appears to us the. certificate was improperly admitted, The Court of Probates for the parish of Rapides, has a clerk y/ho is necessarily the keeper of its records. The appointment of a curator is essentially a matter of record. He can [427] not, be appointed by parol. Even if the appointment be made at chambers, the order must be filed among the records of the court, and becomes part of them. When a fact which is a matter of record is denied, the trial can only take place by the inspection of the record, if it be the record of the court before whom the question is pending.1 Otherwise, by the inspection of a copy made and certified by the person who is the keeper of the record. - Either party has the right to pray for a jury at any time before the cause is set for trial, and this right cannot be denied, even when it is clear it is intended for delay. Perhaps the best evidence of the appointment of a curator, is the letters of curatorship, which establish not only his appointment, but his compliance wfith the requisites of the law, by gjving bond and taking the oath. There is also a bill of exception to the refusal of the judge to permit the amendment of the petition by the addition of a prayer for a jury ; the judge considering that a challenge to the array had been sustained, and there was no jury in attendance, the prayer for a jury must be viewed as having no other object but delay. The court in our opinion erred. The Code of Practice authorizes the prayer for a jury at any time before the cause •be set down for trial. Article 494-5. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and •reversed, and that the case be remanded for a new trial, with •directions to the court below, not to receive the certificate of ■the parish judge of Rapides, as evidence of curatorship of the plaintiff, and to allow the defendant’s prayer for a jury ; •and that the appellee pay the costs of the appeal.