5178 Precedential Affirmed Processed

Kirk v. Reusch

Louisiana Court of Appeal, Fourth Circuit · Filed January 23, 1911 · 8 Teiss. 128

Also decided on this docket: La. Ct. App. 3d Cir., March 12, 1976 324 So. 2d 924; La. Ct. App. 4th Cir., April 3, 1973 275 So. 2d 894; La. Ct. App. 1st Cir., May 22, 1961 131 So. 2d 272; La., April 15, 1877 29 La. Ann. 280

Authorities cited

Identified automatically; this list may not be exhaustive.

110 La. 477 not in our corpus

Opinion text

ST. PAUL, J. This is an action by a minor, now become of age, against the surety on the official bond of his defaulting tutor. The defense admits the signing of the bond but sets up as a defense the alleged invalidity of the tutor’s appointment. The judgment'of the District Court ;was for plaintiff and defendant appeals. Plaintiff answers asking for damages for frivolous appeal. The appeal is wholly frivolous. The Civil District Court for the Parish of Orleans, by which the tutor was appointed, is a court having general probate jurisdiction. And it is one of the most familiar rules of jurisprudence that the judgment of a competent court appointing a tutor cannot be collaterally questioned. Succession of Arland, 42 An. 322; Succession of Keller, 39 An. 579, and authorities there cited. Still less oan it be done by the surety on the tutor’s *129 bond; it being likewise a familiar rule of jurisprudence' that one who signs an official bond as surety cannot be heard to deny the capacity of the principal. January 23, 1911. Rehearing refused, February 20, 1911. Writ denied by Supreme 'Court, March 28, 1911. Lyon Bros. vs. Stern, Kenny & Boze, 110 La. 477 ; Board of School Directors vs. Judice et al., 39 An. 896, and authorities there cited. It is, therefore, ordered that the judgment appealed from be affirmed with ten per centum damages for frivolous appeal, and the cost of appeal.