
    
      BALSINEUR vs. BILLS.
    
    Appeal from the court of the third district.
    alone juris-compeThim accoullt’
   Porter, J.

delivered the opinion of the court. This action is against the curator of a minor, to render an account and pay over balance in his hands. Jt was commenced in the court of probates; but the judge of that court having a knowledge of the facts which _ • l J required his testimony as a witness, he recused himself; and the case, by consent of parties, was transferred to the district court.

After trial ’here, and verdict, the defendant filed a plea to the jurisdiction of the court, which the judge sustained, and ordered the ca i to be dismissed.

This case has been argued before us as pre-sen ling the same question with several others heretofore decided in this court, on the provisions of our old code; and under which we held, that where the parties, permitted judgment to be rendered in the district court, and execution to issue on them, the proceedings were not void. These decisions were predicated upon the fact that the district court did not want jurisdiction ralione materia>, but from the situation or condition of the parties representing the succession, and that such defect of power could be cured by consent.

But by the provisions of our code of practice it is expressly declared, that the court oí probates shall alone have the power to try causes such as that before us. The expressions being negative of the authority of any other tribunal, we are of opinion that the consent of the parlies cannot confer it. Code of prac- * tice, 997, 998, 999.

Preston for the plaintiff

We think, however, the judge erred in dismissing the cause. It was well brought in the first instance, and. should have been sent back to the tribunal from whence it carne. The law which disqualified the judge of probates because he was a witness, has been repealed at the last session of the legislature, and the case can now be tried in the court where it originated' Acts of1828, p. 152, sec. 5.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and it is !u » ther ordered, adjudged, and decreed, that the cause be remanded to the district court, with directions to the judge to transfer the same to the court of probates of East Baton Rouge; and that the appellee pay the costs of this appeal.  