PSYCHE vs. PARADOL ET AL., DUREL APPELLANT, 6 La. 366

Bullard, J., delivered the opinion of the court. The plaintiff sues to recover a negro woman and her increase, bequeathed to her by the will of M. E. de la Hogue, as a specific legacy. She was, at the death of the testatrix, a minor orphan, under the age of puberty. The slave was sold by the executor, and after sundry conveyan- ■ ces, came into the possession of the present defendant, who sets up title under that sale. It is clear that that the proceeding of the executor in relation to the slave in question, were wholly irregular and void.

But the defendant pleads that afterwards, about the year 1818, while the plaintiff was still a minor, and under tii . the age of puberty, the legal representative ol the executor, then deceased, had rendered an account of his administration in the Court of Probates contradictorily with the plaintiff, which was finally homologated by that court by judgment, which forms a bar to this action, and has the force of the thing adjudged. By reference to the proceedings in that case, it appears that H.

Henry was appointed curator ad hoc to the minor, and that a balance in money was found due to the plaintiff, but it is not pretended that she ever received it, or any part of it. This proceeding was conducted on the part of the representative of the executor, by L. Moreau Lislet, who styles himself protector of the minor heirs of Thierry.

It is contended on the contrary, that the plaintiff was not a party to this proceeding; that she was not legally represented by Henry, that no curator ad hoc could be appointed to represent a minor under the age of puberty, by the laws then in force; but a tutor alone, regularly appointed, could validly represent her, and that it was thp'duty of any person having a claim against her, to provoke the appointment of a tutor. law “of 3de2paítida°fau-^SSenth<ofapá to ^represen/10 a minor under the ageofpuberty. Th? validity of peXafrom*cani “ly examined by either of the pur«es.

The Civil Code then in force, does not authorise the appointment of a curator ad hoc to represent a minor under the age of puberty. But it is argued by the defendant, that such a proceeding is authorised by the 11th law of the 2nd Title, Partida 3.

We are of opinion that adults only are spoken of in that law; that is evidently the opinion of Gregorio Lopez, who in a note, discusses the question whether the judge, when called on to make such appointment, is _ _ i i . — bound to consult the minor as to the person to be appointed; and he adds, that the practice is to appoint the person suggested by the minor. “ Ut ipse adolescens nominet quern vult hd illam Litem" If the construction of this law were at all doubtful, it would be rendered perfectly clear by reference to the 1st law, 16th title, of the 6th Partida, which • treats of the tutorship of minors under the age of puberty. 11 Otrosí dezimos, que el quardador deue ser dado para guardar la persona del mozo é sus bienes, é non deue ser puesto por una cosa o un pleyto señalado tan solamente" This law expressly forbids the appointment of a special tutor for a particular suit, except in the single case involving a question of freedom, on the part of the minor child.

The legislature has seen fit to introduce into the Louisiana Code and the Code of Practice, a different provision on this subject. The wisdom of that innovation on the former laws of the country, may be well questioned, when we see as in this case, the manner in which the rights of minors may be sacrificed by the appointment of tutors merely pro forma, without any ultimate responsibility. It is true that the validity of iudements not reversed nor appealed from, cannot be inquired of collaterally by either of the parties. This principle has been recognised by this , . t Tk i • .i • r* . • court in several cases.

But in this case, we are ol opinion that the plaintiff was not a party, in any legal sense of the word, and that the judgment forms no evidence against her. In the case of Vimaud vs. Bernard, the court held that a ° ' judgment rendered against a person legally incapacitated to defend himself, or expressly privileged from judicial pursuit ought to be considered as one rendered without 70 parties, and absolutely void. In the case before the court jjere^. ¿jjere was neither party, citation, nor coniestatio litis. 1 Martin, N. S. 1.

Alter the argumeat has commenced, new evidence cannot be introduced, excLsartieSi may the11 court might particular “eh-m the exorcise of - a sound disere- *»“>• The plaintiff has called our attention to a bill of exceptions, taken to the refusal of the court to allow a witness to be sworn after the argument had been opened on the

part 0f the plaintiff, and the defendant had commenced his reply* The

article 484 of the Code of Practice, forbids any new Pr°of to he introduced without the consent of all parties, after the argument has commenced. There may he cases in which the court might allow it, if under particular circumstances, and, in the exercise of sound discretion; hut in this tit , i . t instance, we are not enabled to say that the judge erred. The defendant’s warrantor complains that the original defendant waived what he calls a peremptory exception, by which means he has been deprived of the advantage of having the suit dismissed and pleading prescription, if a new suit should he brought.

But, by the Code of Practice, the warrantor himself has a right to plead all the exceptions which the original defendant might have done, even those which are personal to him.

Article 384. He did in fact plead the same exception, to wit: that the residence of the plaintiff was not stated in the petition. Therupon a supple-' mental petition was filed, setting forth his residence, and the warrantor filed an answer to the merits without taking a bill of exceptions. We cannot, therefore, inquire whether the court erred. < It -is therefore ordered, adjudged, and decreed by the court, ^that the judgment of the Parish Court be affirmed with costs. * J.

Seghers, for warrantor and appellant, applied for a rehearing on the following grounds: A final judgment having been thus rendered on the peremptory exception, no bill of exceptions could have been taken thereto, for the inferior judge would not have allowed it; the constant practice of the lower tribunals, being never to permit a bill of exceptions to be taken, except when the matter cannot appear in any other shape before the Supreme Court. This is the very maxim laid down by philosophers, that a multiplicity of beings ought to be avoided.

Entia non sunt multiplicando sine necessitate. - Durel, the warrantor, having been ordered to answer to the merits, by the above judgment of the 26th March, 1833, did file his answer on the 6th of April, 1833, expressly reserving to himself the benefit of his peremptory exception.

In order that the trial of this case might be no longer postponed, Durel answered not only to the plaintiff’s original petition, and to the defendant’s call in warranty, but even to the new matters pleaded in the plaintiff’s supplemental petition, which had never been served on him; but, as already stated, he did not do so, without expressly reserving to himself, for the appeal, the benefit of his peremptory exception, which had been overruled by the interlocutory judgment of the 26th of March, just mentioned. He was ruled to answer to the merits, and did so without prejudice to his rights.

In the case of Muse vs.

Curtis, 8 Martin’s Reports, p. 721, a motion for a new trial was overruled by the court, and no bill of exceptions was taken; which was contended to be unnecessary, as this court was bound to notice it, on the appeal from the final judgment, without having their attention thereto directed by a bill of exceptions. “We are of opinion,” says the Supreme Court, “ that this is correct.” “ At common law,” says Phillips on Evidence, 214, “ a writ of error could not be brought for any error in law, which did not appear on the record; and, therefore, when the plaintiff or defendent alleged any thing ore tenus, which was overruled by the judge, the party aggrieved had no redress.” To remedy this defect, bills of exception were introduced by stat' jgjd. 1, sec. 31.

Now, a judgment being a matter which appears on record, no bill of exceptions can, of course, be required. Bullard, J., delivered the opinion of the court. The warrantor has prayed for a rehearing on the question, whether the exception taken to the petition that it did not set forth the place of residence of the plaintilf, was a peremptory exception which ought to have been sustained, and consequently the suit dismissed.

Our attention is called to an expression in the opinion heretofore delivered, from which it might be inferred that we thought a bill of exceptions necessary, whenever the inferior courts overrule an exception in writing. Such was not the meaning of the court, and the expression was used inadvertently, probably under the impression that the proceeding took place during the trial. We think the court did not err in allowing an amendment and a supplemental petition to be filed.

The exception does not, in our opinion, go to extinguish the action; nor does this appear to us one of those nullities of form, for which a suit ought necessarily to be dismissed. The rehearing is refused.