Commaux v. Barbin

6 Mart. (N.S.) 454

• Court: Supreme Court of Louisiana
• Decided: February 15, 1828
• Status: Published

Opinion

Martin, J. 7

delivered the opinion of the r , cour^ The minor being under the age of pu-o .or berty, his grand-father prayed to be appointed his tutor, on a suggestion that the mother and tutrix had contracted a second marriage, without having applied for a family meeting for the purpose of determining whether she should be r 1 . continued in the tutorship. The judge of probates ordered a family meeting to examine and report on the sureties he offered.

The meeting was ordered for the 12th of April.

On the 14th of May, the under tutor opposed the appointment of the grand-father as tutor on various grounds.

The grand-father prayed that the opposition be dismissed, on the ground ofits having been filed too late. Of this opinion was the judge, and it was accordingly dismissed.

The under tutor took a bill of exceptions to the opinion of the court.

Afterwards, at a special court of probates, letters of tutorship were directed to issue to the grand-father, the court expressing again its opi-ilion, that the opposition was too late, and stating that the under tutor did not apply for the tutorship himself, or for any other person—that the grand-father had a legal claim to the tutorship, and was recommended by the family meeting as a fit person. The under tutor appealed.

We do not see on what ground the opposition was rejected as tardy, and the record is extremely obscure on this head—the petition of the grand-father, the order ¡or the family meeting, and the summons ofits members, are without a rule. We collect from the summons, that the meeting was to be holden on the 12th of April.

The proceedings at this meeting make no part of the record.

The grand-father, as the nearest ascendant, the father being dead, and the mother having forfeited the tutorship, had a right to the tutorship, without the recommendation of the family meeting, but the assembly was to consider of the sureties he offered.

At the meeting for this purpose, the under tutor was to be present, and the sheriffs return shews that he was not.

Eustis for the under tutor.

The proceedings of this meeting were irre- ' ⅛ & guiar, and the under tutor had a right to com- , . í* i i plain or this—and vve are ignorant or, and the grand-father has not shown any provision of law, fixing any fatal delay.

The court ought not to have ordered letters to issue till surety was given according to law, i. e. a bond with surety, approved by a family meetin , to which the under tutor was summoned.

It is therefore ordered, adjudged and decreed, that the judgment of the court of probates be annulled, avoided and reversed, and the case remanded, with directions to the court of probates to proceed therein according to law.