Martel v. Richard , 15 La. Ann. 598 ( 1860 )

Merrick, O. J.

“ This is a suit instituted by the plaintiff, tutor of Jul-ien <& Lewis Grabot, against Franpois Richard, administrator of tho succession of Lange Grabot, deceased, for the purpose of annulling a sale of land, provoked by the defendant in his capacity as administrator of the deceased, to dismiss the administrator from office for his neglect and mal-administration, and to recover the sum of five hundred dollars from his official surety, as damages sustained by the minors in consequence of the mal-administration of the defendant; an injunction was also prayed for and granted to arrest the sale of property advertised to be sold at the instance of the defendant, and also to arrest all further proceedings by the administrator until the further order of the court.”

“ Defendant filed an answer to the merits on the 23d of May, 1856. On the 28th September, 1859, by amendment, he filed two peremptory exceptions, alleging that the minors had arrived at the age of majority, and that the tutor was functus officio, and could not prosecute this suit.”

The District Court being of the opinion, that the proof showed that the heirs had attained the age of majority, maintained the exception and dismissed the suit.

Plaintiff appeals.

The proof, or admission, does not clearly establish, as we think, the inference that tho heirs have all attained the age of majority.

The tutor represents the minors so completely, that when he has once brought a suit for them, or answered an action against them, no further petition or answer can be required on their behalf. The judgment rendered in the name of the tutor, for or against the minors, so long as his office continues, is a judgment for or against the minors themselves, subject, however, to the rules relative to actions of nullity and appeal. C. P. 109 ; 15 An. 88, 3 An. 292, 7 An. 368, 11 R. 504.

If this suit was properly brought for the minors, when commenced by the tutor, (we repeat) it is ffór-suit, as much so, as if it were commenced in their individual names as majors, and as a consequence, they may prosecute the same when they attain the age of majority, without any new citation or formal changes in the pleadings. They should take care, however, that judgment, in an action of this kind should be rendered in favor of those heirs who have attained the age of majority, as well as the tutor of those who are still minors.

The District Court not having passed upon the merits, but having dismissed the case upon an exception, the same must be remanded.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed, and that said exception be overruled, and that this case be remanded for a trial upon the merits, the defendant paying the costs of the appeal.