# Jefferson v. Jefferson > Supreme Court of Louisiana · March 30, 1964 · 246 La. 1 URL: https://www.frixlaw.com/law-library/cases/9682566 ## Case - **Full name:** Vernita JEFFERSON v. Sam JEFFERSON Et Al. - **Court:** Supreme Court of Louisiana - **Decided:** March 30, 1964 - **Citations:** 246 La. 1; 163 So. 2d 74; 1964 La. LEXIS 2469 - **Precedential status:** Published - **Opinion:** Dissent by McCALEB - **Judges:** Sanders, Fournet, McCaleb - **Cited by:** 16 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9682566 ## Opinion text McCALEB, Justice (dissenting). I do not agree that defendant was required to except in limine to plaintiff’s incapacity or lack of legal right to sue as natural tutrix of her minor child. It was alleged in the petition that the child was issue of plaintiff’s marriage to Limas Jefferson; that he had not resided with plaintiff since he abandoned her shortly after the marriage; that he has failed and refused to support her and his child and that he is now attending Southern University at Baton Rouge as a student. The substantive law, Article 221 of the Civil Code, provides that the father, during the marriage, “is * * * administrator of the estate of his minor children and the mother in case of his interdiction or absence during said interdiction or absence.” 1 Clearly, then, plaintiff’s failure or inability to allege that her husband was either an absentee or an interdict discloses that she is without right or capacity to sue on behalf of her minor child and, hence, the proceeding should have been dismissed on an exception of no right of action. Article 700 of the Code of Civil Procedure, which is cited in the majority opinion as authority for concluding that defendants waived their right to assail plaintiff’s lack of qualification to maintain this action since they failed to assert it in limine by a dilatory exception, is inapplicable here for the simple reason that plaintiff has stated facts exhibiting on the face of her pleadings her lack of authority to sue. The presumption provided by Article 700 C.C.P., which results from defendant’s failure to challenge by dilatory exception a plaintiff’s right to sue as an agent or as legal representative of another, arises only in, and is necessarily restricted to, cases in which the allegations, if taken as true, show that the plaintiff is competent to appear in the capacity asserted. But where the pleading shows on its face, as here, that such a plaintiff has no legal right to sue as an agent or represent an incapacitated person, an exception of no right or cause of action will properly lie whether filed in limine or at any other stage of the proceeding. *17 Indeed, Article 927, C.C.P., dealing with peremptory exceptions, declares in part “The nonjoinder of an indispensable party, or the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, may be noticed by either the trial or appellate court of its own motion.” (Italics mine.) Nor do I subscribe to the majority view that the grandparents of the minor child are liable for its support under Article 229 of the Civil Code. This article, which is declaratory of the general family obligation of children to maintain their father and mother and other ascendants who are in need and reciprocally binds all ascendants to maintain their needy descendants, must be read and construed, as to minor children, with Article 227 of the Civil Code, a law in pari materiae, which places upon fathers and mothers, by the very act of marriage, “ * * * the obligation of supporting, maintaining, and educating their children.” Support of their minor children unquestionably rests primarily, legally and historically on the parents. And, while it is true that Article 229 does not establish a priority of obligation of support among the ascendants, the Court, in my opinion, blinds itself to the reality of the family relation by ignoring, in its consideration of the serious problems here presented, Article 227 which places directly the support of the minor children on the shoulders of the mother and father who bore them. Of course, in any case in which it can be established that the father and mother are incapacitated, either mentally or physically, the natural family obligation, which is made a legal obligation by Article 229, must then come into play. But it will not do to say, as the majority has said, that because the husband’s father is contributing to his support at Southern University, or because the plaintiff-mother is unemployed, that the primary obligation of the father and the plaintiff to support the child that they have brought into the world is excused, or, rather, that it must be shifted to the shoulders of the grandparents. In concluding that the grandparents were responsible in this case, the Court of Appeal relied in the main on the decision of the Second Circuit Court of Appeal in Nations v. Nations, 128 So.2d 228 , where a like result was reached. In the Nations case, the Court cited Barcelo v. Barcelo, 175 La. 398 , 143 So. 354 , as authority for its conclusion. But the Barcelo case is not authority for the holding that the grandparents of a minor child are liable for the latter’s support when the father and mother of the child are living and are not physically or mentally incapable of providing support. In that case, the mother of the child obtained judgment against the child’s paternal grandfather. The mother appealed, complaining as to the amount of award of alimony, but the judgment was affirmed. The grandfather did not appeal nor did he answer the appeal. Therefore, the question of *19 his legal responsibility for the alimony was not at issue in this Court. Tolley v. Karcher, 196 La. 685 , 200 So. 4 , also cited in the opinion in the Nations case, is likewise not authority for the conclusion in that case, since the Tolley decision concerned only whether plaintiff, a middle-aged woman, could require that her mother contribute to her support under Article 229 of the Code. The Court held in the affirmative, expressing the view that Article 229 is not restricted to minor children. I respectfully dissent. . See also Article 683, Code of Civil Procedure, which is to the same effect. It reads, in part: “The father, as administrator of the estate of his minor child, is the proper plaintiff to sue to enforce a right of an unemancipated minor who is the legitimate issue of living parents who are not divorced or judicially separated. The mother, as the administratrix of the estate of her minor child, is the proper plaintiff in such an action, when the father is a mental incompetent or an absentee.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682566. Public record. Not legal advice.