delivered the opinion of the court.
The plaintiff brought this action against James Muggah in his own right, and as curator of Edward Muggah, his brother, an absentee, and heirs of John Muggah, deceased, on a balance of account.
. Where an ac-lion was pending in the District feent ^parish Ívhíoh ufe de* fendant resided, Meld, that the suit the Court ofPro- ■ hates, for the pa-deceased had his ttiOTeprosecuted against his sue- Where a sue-careofanadmi-nistrator, and who is tutor of the minor heirs, toacceptu^hso-oniy‘>beTiied0or stand in judg-merit in the Probate Court.The defendants pleaded payment, compensation, prescription, etc. Afterwards, the defendant, James Muggah, died,. and his heirs and legal representatives, were made parties but no step was taken in relation to the defendant, Edward r . . . . Muggah, the curatorship of whom expired on the death or his brother James.
The new defendants added the general issue to the former pleas, and that the District Court of the parish of Lafayette, pac[ n0 jurisdiction,' but that the suit should have been J . brought in the Probate Court, for the parish of St. Mary, where their ancestor lived, and where they now reside.
There was judgment against the defendants, for the sum of three hundred and twenty-five dollars and fifty-nine cents, the whole amount ascertained to be due from the deceased, J°^D Muggah, to the plaintiff. The defendants appealed.
It is clear that the plea to the jurisdiction of the District Court, should have been sustained; not because the deceased James Muggah, was a resident of another parish than that jn wlfich he was sued, for he had waived his right to be sued in his own parish, but because his succession was in the care an administrator, who was also tutor to the heirs, and w]10 could not accept the succession absolutely ; such defendants are suable only in the Court of Probates,
The defendant, Edward Muggah, was out of court by the h*s curator, and no legal steps were taken for the appointment of another.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the case be transferred to the Court of Probates, for the parish of St. -Mary; and that the plaintiff and appellee pay costs in both courts, reserving to him the right to claim before the Court of Probates, those incurred in the District Court.