ON APPLICATION FOR REHEARING
REYNOLDS, J.Defendant asks, for a rehearing herein and that this case be *677sent back to the District Court for trial the sixth time. In our opinion this should not be done except in an extreme case.
We based our decision herein on the fact that the evidence introduced, as a whole, convinced us that Elmer Turner on the date of the last trial of this case, March 5, 1924, had not recovered from the injuries received by him February 17, 1922, while he was performing services arising out of and incidental to his employment in the course of his employment by the defendant in his employer’s trade, business or occupation.
Defendant’s able brief on application for rehearing has not changed our opinion as to this fundamental fact. Hence, we do not see our way clear to longer delay rendering a final decree insofar as this court is cpncerned.
Defendant has called our attention to the fact that we rendered judgment for 65% of the difference in the earning capacity of pláintiff’s son since the accident as compared with his earning capacity before the accident. This was an error. The amount should have been fixed at 60% of the difference in his earning capacity, as fixed by Act 34 of 1922, instead of 65%, as fixed by Act 216 of 1924, and this correction must be made.
But it is not necessary to grant a rehearing in order to make the correction.
Defendant further calls our attention to the fact that our former decree herein 'does not make it clear that defendant is entitled to credit for $Í98.00 paid by defendant to plaintiff on the injury received by his son.
Defendant’s claim that it is entitled to this credit is correct, and the decree herein will be so -recast as to give it the benefit of this credit.
For these reasons it is ordered, adjudged and decreed that William P. Turner ' do have judgment in his favor and against the Standard Oil Company of Louisiana in' and for sixty per cent of the difference between what Elmer Turner, son of .the plaintiff, was able to earn before he was injured, and the amount he was' able to earn thereafter, or a weekly indemnity of $10.80 during the period of disability, not to exceed a period of 300 weeks, from' March 25, 1922; (this amount being based upon the demands in plaintiff’s petition); each of the weekly, payments bearing 5% per annum interest from its maturity until paid.
This judgment is subject to a credit of $198.00 to be deducted from the first amounts due on said judgment.
It is further ordered, adjudged and decreed that the fees of Julius T. Long, attorney representing the plaintiff herein, are hereby fixed at one-third of the net amount recovered and collected under this judgment.
ON MOTION TO SET ASIDE JUDGMENT.
ODOM, J.William P. Turner brought this' suit for the use and' benefit of his minor son, “Sambo”, or Elmo Turner, under the Workmen’s Compensation Act •to recover compensation during - disability caused by injuries which he received while .employed by and working for the defendant company.
The case having been disposed of in the District Court was appealed to this court, the appeal being lodged here on April 21, 1924.
The case was finally disposed of in this court on March 30, 1925.
*678In May, 1924, while the appeal was pending in this court, “Sambo” or Elmo Turner married. He was then under 18 years of age but became 18 on the 7th •day of August following.
That he was fully emancipated on reaching the age of 18 years, after the mar riage, is conceded.
. He did not make application to be made a party to the suit during the pendency of the appeal nor did the defendant suggest that he had been emancipated and ask that he be made a party. In fact, it appears that neither his counsel nor counsel for defendant knew of his marriage • until some time after the happening of that event'.
But on May 21, 1925, after the judgment of this court had become final and a writ had been refused by the Supreme Court, the. said “Sambo” or Elmo Turner in pro per filed a motion in this court setting up the fact that he married in May, 1924, and that he had reached the age of 18 years in August, following, during the pendency of this appeal in which application he set up:
“That he consents to acquiesce in the judgment recently rendered in this case .by the court.”
And prays that he be authorized and permitted to become a party plaintiff and to acquiesce and consent to the judgment
On the following day counsel for defendant, having learned of the marriage of “Sambo” or Elmo Turner and of his motion to be made a party to this suit, 'came' into court with an application setting up the facts of the marriage and emancipation of "Sambo” or Elmo Turner during the pendency of the suit and setting out:
“That the right of William P. 'Turner, as the father of ‘Sambo’ or Elmo Turner to represent his son in this case ceased and terminated when ‘Sambo’ or Elmo Turner married and reached the age of 18 years and that all proceedings had in this case subsequent to the filing of the transcript are therefore absolute nullities.”
And then follows the prayer:
“Wherefore appellant prays that ‘Sambo’ or Elmo Turner be made a party hereto and. that after he has been made a party hereto that this case be regularly fixed for argument in accordance with the rules of this honorable court.”
There being • no opposition to “Sambo” or Elmo Turner’s application to be made a party to this suit we have signed and entered the order.
But defendant, in effect at least, suggests that all proceedings in this court subsequent to August 17, 1924, the day on which “Sambo” or Elmo Turner was emancipated by marriage, are null and void, and asks that our judgment be disregarded and that the ease be regularly fixed for argument.
Code of Practice, Article 109, provides:
“Tutors act themselves, in all judicial proceedings, in the name of their minors, and in all suits which may be brought for them, without making them parties to said suits.”
The present suit was brought by William P. Turner for his minor son, “Sambo” or Elmo Turner. He represented his son in the suit. But the son was in court during- each of the five different trials of the case and each time gave evidence in his own behalf. It cannot, therefore, be said that he was ignorant of the fact that the suit had been instituted and was prosecuted in his behalf.
The suit was to recover compensation for him on account of injuries which he as an employee of the defendant received. *679He married, and upon reaching the age of 18 years became emancipated for all purposes. His father’s capacity to represent him further in the suit ceased because he “Sambo” or Elmo Turner, was .then vested under the law with full authority to prosecute the suit to a final conclusion. There was nothing further to do except for the attorney who had been engaged by his father to represent him in this court.
The appeal was prosecuted with the full knowledge and acquiescence of “Sambo” or Elmo Turner. He did not ask to be made a party. He did not have to do that.
In the case of Martel, Tutor, vs. Francois Richard et al., 15 La., Ann. 598, the court said:
“If this suit was properly brought for the minors, when connected by the tutor, it is their suit, as much so as if it were commenced in their individual names as majors, and, as a consequence, they may prosecute the same when they attain the age of majority without any new citation or formal changes in the pleadings.”
In the case cited a tutor brought a suit to annul a sale of land and recover a certain amount of damages. The defendant, among other pleadings, filed an exception alleging that the minors had arrived at the age of majority and that the tutor was funtus official and could not prosecute the suit.
The District Judge dismissed the suit, being of the opinion that the proof showed that the minors had attained the age of majority. Plaintiff appealed to the Supreme Court which held that the proof did not show that all of the minors had attained the age . of majority and it reversed the judgment of the lower court and remanded the case to be tried on its merits.
The court said:
“The tutor represents the minors so complete that when he has once brought a suit for them, or answered, an action against them, no further petition or answer can be required on their behalf.”
In the case of Mrs. Bertha Lewis vs. J. P. Pepin, Tutrix, 33 La., Ann. 1417, the Supreme Court refused to dismiss .an appeal on the ground that it was taken by the tutrix after her wards had attained their majority when the record did not show that the wards were made parties.
The court in this case cited and quoted .from the Martel case, supra.
In the case of Pattison vs. Gulf Bag Co., Inc., 116 La. 963, 41 South. 224, the suit was brought by the father to recover damages for an .alleged libel and slander of his daughter, who was a minor. The daughter being over the age of 18 years married during the pendency of the suit; in the lower court and her husband was made a party. There was judgment in her favor for $500, from which judgment the defendant appealed.
The father, it seems, appeared in the Supreme Court and asked for an amendment of the judgment. The court held that the father had no standing in court and that he had no capacity to represent his daughter, she having been emancipated, but there was no appearance in the Supreme Court by the daughter. She did not ask • to be made a party to the suit after she was emancipated by marriage either in the District Court or the Supreme Court. It seems to have been taken for granted that it was not necessary for her to take any formal action or step in the case after she was married. The Supreme Court passed on the case with all the facts before it.
*680In the case at bar, the moment that “Sambo” or Elmo Turner became 18 years of age after his marriage he was emancipated for all purposes, and at that moment his father’s capacity to represent him ceased; but at that same moment “Sambo” or Elmo Turner had the capacity to represent himself in court and prosecute the suit to a final conclusion. He did not have' to be formally recognized as plaintiff under the authority of the cases above cited, nor did he have to make any formal appearance in court. Judgment was finally rendered in his favor, with which he now says he is satisfied.
If a judgment had been rendered against him under the circumstances, he wo.uld, in our opinion, have been bound tor., the reason that he was in court personally during the trial; the suit was brought, for him; and he was fully cognizant of all the. proceedings. When he became, emancipated he was thereby vested with full capacity to represent himself in court. He did not see .fit to object to the prosecution of the suit but acquiesced in all that was done during a period when he had capacity to bind himself and to be bound.
Could he now, after acquiescing in what has been done, repudiate the judgment? We do not think so.
We find the following to be the law as stated in 34 Corpus Juris, page 993, “under the' head of “Judgments”:
“A person will be concluded by a judgment in a suit if, with his knowledge, the -suit, is commenced and prosecuted or defended in his name, and judgment ren"dere'd therein, without objection on his part, although a contrary rule has been asserted where -such person has done nothing which has caused the other parties to act in some way which will prejudice them if the judgment is not held . conclusive.”
Counsel for defendant cite numerous authorities to the effect that when a litigant dies during the pendency of an appeal his heirs must be made parties. But those cases are not in point. When a litigant dies he ceases to exist and there is therefore no one before the court for whom or against whom a judgment may be rendered. Someone has to be substituted for him.
Counsel also cite the case of Roe vs. Caldwell, 138 La. 652, 70 South. 548, where a tutrix died prior to the signing of the judgment in the lower court, and the court held that the appeal must be dismissed as the minors were not represented.
That holding is based upon the theory that a minor has no capacity to represent himself in court and that upon the death of the tutrix someone must be appointed to represent the minor. But if the minor had become of age on the day before his tutor died the situation would have been altogether different; because at the ■ moment the tutor ceased to represent the minor the minor was relieved of his incapacity and could have represented himself.
In the case at bar, William P. Turner represented his son, “Sambo” or Elmo Turner, until the .latter became emancipated. At that moment “Sambo” or Elmo Turner was in court with full capacity to represent himself and to take up the suit where his father left it.
We think the judgment is • valid and binding upon all parties.
For the reasons assigned, it is therefore ordered that the defendant’s application to have the judgment heretofore rendered by this court declared a nullity and to have this case reset for argument is denied.