
    
      (89 South. 625)
    No. 24742.
    In re COURTIN. In re BROWNE.
    (June 30, 1921.
    Rehearing Denied Oct. 8, 1921.)
    
      (Syllabus by Editorial Staff.)
    
    Appeal and error <&wkey;>1(9l — Premature order for trial of cause, made before mandate from Supreme Court was filed, set aside.
    Where, on hearing of writ of prohibition to set aside order appointing one as natural tutor, Supreme Court set aside the order and remanded the cause for trial of the opposition of the undertutor order of lower court setting cause for trial before filing or recording of mandate, as required by Code Prac. arts. 618-620, was premature.'
    In the matter of appointment of R. CCourtin as natural tutor of his minor child. On application of Oscar Browne, undertutor, appointment set aside.
    Writ of prohibition to the civil district court, to stay proceedings, in such court under order prematurely fixing opposition of undertutor' for trial, set aside, and temporary staying order issued recalled.
    See, also, 148 La. 395, 87 South. 21; ante-p. 239, 88 South. 806.
    
      J. D. Hill and W. O. Hart, both of New Orleans, for relator.
   O’NIELL, J.

On April 23, 1921, this court isned an order in the case bearing the title of the present proceeding, and being No. 24,626 of the docket of this court, directing the judge of the civil district court to show cause why a writ of prohibition should not issue, and, in the meantime, staying all further proceedings in that court. On the 30th of May, 1921, a final decree was rendered in the case, setting aside the judgment appointing or confirming the tutor, and remanding the case for trial of the opposition of the undertutor to tlio appointment or confirmation of the tutor. Before the mandate was recorded or filed in the civil district court, in the manner provided by articles 618, 619 and 620 of the Code of Practice, the judge of that court assigned the case for trial. When it was called for trial, the attorneys for opponent, undertutor, objected to proceeding with the trial, on the ground that the civil district court was not yet reinvested with jurisdiction of the case when it was fixed for trial. The objection was overruled; and, having given due notice, the attorneys for the opponent, undertutor, applied for the exercise of our supervisory jurisdiction.

In answer to the rule to show cause why a writ of prohibition should not issue, the judge of the civil district court acquiesced in applicant’s prayer for relief. R E. Courtin, the applicant for appointment or confirmation as natural tutor, has not answered the rule or order to show cause, notwithstanding Courtin’s attorneys accepted service of the rule. It is plain that the order fixing the case for trial was rendered prematurely, and inadvertently.

We assume that this case will not be fixed again for trial until the mandate of this court, dated May 30, 1921, shall have been filed and recorded in the civil district court; and that the temporary staying order issued herein has served its purpose.

The order of the civil district court, prematurely fixing the- opxrosition of the under-tutor for trial, is now set aside, and the temporary staying order issued herein is now recalled. R. E. Courtin is to pay the costs of this proceeding.  