Scott v. Lawson

10 La. Ann. 547

• Court: Supreme Court of Louisiana
• Decided: July 15, 1855
• Status: Published

Opinion

Spoeford, J.

The plaintiff, as counsel for the absent heirs of John M. Bell, deceased, brought this suit to procure the dismissal of the defendant from the office of curator of Bell’s vacant succession.

The reasons alleged are, that the curator, who was a resident of the parish of Bienville at the time'of his appointment, has since left the State and gone to California to reside, where he has been more than a year without leaving any agent or attorney in fact to represent him in the said- succession,, and. that he has also failed to render the proper accounts of his curatorship.

A curator ad hoe was appointed to represent the absent defendant,, and has. appealed from the judgment of the District Court dismissing the curator from, office.

In this court, he urges that the Judge erroneously overruled his application, for a continuance. But he took no bill of exceptions to the ruling, and we cannot, therefore, revise it. It is only when the question decided is presented by-the pleadings, that a bill of exceptions may be dispensed with. Exchange and Banking Co. v. Yorke, 4 An., 139.

The long continued absence of the defendant, probably in the State of California, was sufficiently proved, without the evidence which was excepted to, by-the defendant’s counsel.

It was the duty of the defendant to show that he had complied with the requirements of the Act of 24th April, 1847, amendatory of Art, 1145 of the-Civil Code, even if his absence was but temporary. “ Curators, administrators,, tutors and testamentary executors who only wish to be absent for a time, ought not to lose their administration of said successions on that account; provided,, they leave with some person residing in the parish, or in an adjoining parish, where the succession is opened, a general and special power of attorney to represent them in all the acts of their administration as curator, administrator,, tutor and testamentary executor, and deposit an authentic copy of the power-of attorney before his departure, in the office of the Recorder of Mortgages in and for the parish where said succession has been opened, which power of attorney shall be duly registered.”

The object of this law is to secure the constant presence of a person to represent the succession, to whom creditors and heirs may apply. The curator ad hoc might have procured evidence enough to defend this suit by application to the Recorder, if his client had complied with the law.

There is no error in the judgment destituting the defendant of his office as curator. O. C. 1144, 1145, 1149, 1151.

Judgment affirmed with costs.