Lillard v. Kemp

Morpiiy, J. The petitioner appeals from a judgment dismissing a suit he had brought for the removal of the defendant from the tutorship of her minor children, on the ground that she has shown neglect and incapacity in her administration, and that she has left the state with her said minors. The exception taken below and sustained, is, that the plaintiff is without authority to institute this suit, unless authorised or directed by the probate judge to prosecute it. We think that the inferior court did not err.. The Code of Practice makes it the duty of every person to acquaint the judge of probates with the fact rendering it proper to remove a tutor. It further provides that the judge, when made acquainted with such fact, if he thinks there is probable cause for removal, shall direct the under-tutor to prosecute his removal, &c. Articles 1015,1016. Prom these provisions of law, we understand, that the under-tutor, like any other person, must communicate to the probate judge the fact which may render it necessary to remove the tutor; that the judge is to determine whether there is sufficient ground to commence any action against the tutor; but that no one, not even the under-tutor, is authorised to prosecute it, without being directed to do so by the Court of Probates. This requirement of the law was probably intended to protect the tutor from inconsiderate and harassing suits on the part of the under-tutor, and [115] to save the estate of the minor from the costs of such suits. 10 La. 82. 12 La. 577. 13. La 67. Judgment affirmed.