
    James Moodie v. J. B. L. Cambot — B. N. Fortier, Under-Tutor, Intervenor.
    When the under-tutor having intervened in a suit against the tutor for a debt of the minor, prosecutes an appeal from a judgment against the tutor, the appeal will be dismissed if the tutor is not made a party to it.
    PPEAL from the Second District Court of New Orleans, Morgan, J.
    Jc.Jl C. Dufour, for plaintiff. P. E. Théard and J. W. Duncan, for intervenor appellant.
   Cole, J.

The defendant being sued as tutor of his minor daughter, for work done by plaintiff upon a house belonging to the minor, the under-tutor intervened upon the ground that the tutor had contracted without the authorization of a family meeting ; that the minor was not responsible for a debt so created, and that there was a conflict of interest between the tutor and minor.

From a judgment against the defendant, in his capacity of tutor, the under-tutor has appealed.

A motion has been made to dismiss the appeal, because the tutor was not made a party thereto.

Although the under-tutor was entitled to intervene to watch over the trial and see that justice was done to the interests of the minor, yet the proceedings were conducted, not only contradictorily with him, but also with the tutor ; the latter was not ousted from his position of defendant by the intervention.

The defendant, as tutor, had the right to maintain the legality of his conduct, if it were in his power so to do; and he appears to have succeeded, for the judgment was against him, as tutor.

The intervention was based upon the alleged infidelity of the tutor and a supposed disposition in him to allow a judgment to go against the minor to save himself from future liability to plaintiff, on the ground of his personal responsibility for having contracted with plaintiff, as tutor, in the absence of any legal right so to do.

We are of opinion, that the tutor ought to have the opportunity of showing his good faith and the legality of his contract as tutor, and that he ought to have been made a party to the appeal. If he were not a party, his contract might be avoided, the minor declared free from responsibility, and the tutor left subject to a personal action.

Besides, the tutor is defendant in the action, and the judgment was against him in his capacity of tutor.

How then could this court affirm or reverse the judgment against Mm, when he is not a party to the appeal.

It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed, at the costs of appellant.

Same Case — On a Re-hearing.

Cole, J.

The application for a re-hearing' is refused with the same remarks as í» No. 5134 of Toussaint v. Cambot.

Re-hearing refused, with costs.  