LAURENT vs. SAILLARD, UNDER TUTOR, ETC., 11 La. 38

Carleton, J., delivered the opinion of the court. This is an application for a mandamus to the judge of the Probate Court, for the parish and city of New-Orleans. It appears that Joseph Laurent presented a petition to the Court of Probates, for the parish and city of New-Orleans, alleging the insolvency of Jean L. Rabassa, and praying that he might, on that account, be removed from the tutorship of the minors Pigneguy. Rabassa pleaded the general issue.

Laurent then took a rule upon Saillard, the under tutor, to show cause why he should n.ot institute proceedings against Rabassa for his removal from the tutorship. The under tutor replied, that he could not institute such proceedings, inasmuch as Rabassa was not insolvent. On the hearing of the rule, and the evidence exhibited, the judge determined as follows : “ It is ordered, adjudged and decreed, that Jean Raphael Saillard, as under tutor, do prosecute the removal of J. S.

Rabassa, tutor, as aforesaid, for the reasons set forth in the rule.” Saillard being dissatisfied with the decree, asked for an appeal, which was refused. He, thereupon, applied to this court by petition, setting forth the foregoing facts, and prayed for a mandamus to the probate judge, requiring him to allow r . J ° , ° the appeal.

The judge, m his return to the rule taken upon him, avers that no appeal can lie from his decree, it being in (fie nature of instructions to institute a suit, “ leaving the propriety of removing the tutor to be hereafter determined in , , ,- due COWse Ot law.” We agl'ee whh the judge of the Probate Court, that an order to institute a suit, is not a final judgment in any sense of the term. It can work no irreparable injury; for the rights of the tutor and minors, as such, cannot be affected, unless by the judgment to be rendered in a suit not yet begun.

The order to bring the suit exists, but not the suit itself; until it is instituted, no judgment can be pronounced, upon which this court can act. Let the rule be discharged.