Tutorship of Stokes

22 La. Ann. 204

Opinion

Wyly, J.

Jane Stokes, wife of Wm. M. Lindsay, instituted this suit against Sothey Hayes, the surety on the bond of her tutor, to recover $968 14 and interest, the amount of the liability of the latter to her.

Her demand was dismissed by the court of the first instance, and she has appealed.

A motion is made to dismiss this appeal, for the reason that there is no evidence in the record of the authorization of the plaintiff by her husband to institute the suit, or to stand in judgment.

The plaintiff contends that, as the appeal bond is signed by her husband, and as he has joined her in an assignment of errors filed in this court, article 123 of the Civil Code, prohibiting the wife from appearing in court without the authority of her husband, has been sufficiently complied with.

We can not assent to.this proposition. The husband must appear with his wife, or she must exhibit her authorization before 'proceeding to trial on the merits. The signing of the appeal bond, and the filing of an'assignment of errors in this court, will not cure the defect existing at the trial in the court below — -the want of capacity of the wife to stand in judgment. 2 R. 12; 4 La. 259; 10 An. 504; 2 An. 140; C. P. 320, 321; Succession of E. H. Pomroy, 21 An. 576.

.She had no .authority .to institute the suit, to stand in judgment, or to.apply for the order of. appeal.

■ It is therefore ordered that this appeal be. dismissed, at appellant’s costs.