Thompson v. Hutchiss , 13 La. 66 ( 1839 )

Marlin, J.,

delivered the opinion of the court.

The plaintiff states himself to be a creditor, and concerned in the solvency of the estate of Hackett, and suggests the malversation of the defendant, as administrator of the estate, and tutor of the minor heirs; prays that he may be ordered to render his account, and be dismissed from the tutorship. There was judgment against the defendant accordingly, and he appealed.

It is clear that the court erred in dismissing him from the tutorship, although it is the duty of every person to communicate to the Court of Probates, any fact within his knowledge, on which a tutor ought to be removed. Code of Practice, art. 1015. No one is authorized to institute the action for the removal, without being properly authorized so to do by the Court' of Probates. The article 1016, provides that the judge when made acquainted with such fact, if he think there be probable cause for removal, shall direct the subro-gated tutor or curator ad lites of such minor, to prosecute the removal; or if the said minor has no subrogated tutor or curator ad lites, he shall appoint a curator ad hoc to commence the action.

, In the present case, the record shows that there was a subrogated tutor, who intervened, and evinced his disapprobation of the removal of the tutor.

The plaintiff’s application ought to have been dismissed. We have refrained from examining, whether the judge of probates ought not to have ordered the subrogated tutor to institute an action for the removal of the tutor; because, it has appeared to us, that the plaintiff has not the right to demand the amendment of the judgment in this respect, and if he had, he has not exercised it. The judge of the Court of Probates needs not the expression of our opinion on the propriety of the tutor’s removal, who may, without it, order a suit to be instituted therefor, on the information before him.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be reversed, the suit dismissed at plaintiff’s costs, together with costs of appeal.