Fitzner v. Noullet

38 So. 94, 114 La. 167, 1904 La. LEXIS 520

• Court: Supreme Court of Louisiana
• Decided: November 21, 1904
• Docket: No. 15,397
• Status: Published

Opinions

On Motions to Dismiss.

MONROE, J.

It appears from the record that O. Fitzner and F. A. Noullet formed a partnership to carry on business as contractors and builders, and, assuming the allegations of the petition to be true, that they did some work for which the city of New Orleans owes them, say, $30,000. They were, however, sued by a number of creditors — contractees, subcontractors, furnishers of materials, etc. — who undertook to secure themselves by inscribing what are said to be liens intended to operate upon a building constructed for, and the fund due by, the city. Such being the situation, the partners disagreed, and Fitzner brought suit for the appointment of a liquidator, with the result that, by consent of both parties, Messrs. Bruenn and Calm, members of the bar, were appointed the liquidators and receivers of the partnership, and were authorized to take charge of its assets and manage and wind up its business. They thereupon caused an inventory to be made, and took a rule on the creditors requiring them to show cause why the inscriptions referred to should not be canceled, and the claims which they purport to represent referred to the assets of the firm to be hereafter realized, and taken possession of by the liquidators. To this rule some of the creditors excepted on the ground that the rule discloses no cause of action, and that in any event the proceeding by rule is unauthorized. Others of the creditors set up more elaborate defenses, but the exception of no cause of action was sustained; and, the rule having been dismissed, and the plaintiffs therein having appealed, several of the appellees now move to dismiss the appeal on the grounds that the appellants have no Appealable interest, and that the judgment appealed from is interlocutory and cannot work an irreparable injury.

The appellants have been authorized by Messrs. Fitzner and Noullet to take charge of the assets and liquidate the affairs of the partnership lately existing between them; and, whether such authorization has received judicial sanction or not, they (appellants) stand in the shoes of their principals, for those purposes, and have an interest in reducing to possession the assets of which they are authorized to take charge, and in clearing away the obstacles to their satisfactory distribution. Whether it would be competent for Fitzner and Noullet to proceed by rule, as appellants have done, or whether it is competent for appellants to proceed in that way, can best be determined by hearing them, and not by dismissing this appeal. It may be that such a proceeding will not lie, but, if the contrary be the case, the denial of the right so to proceed, we think, judging from the allegations of the petition, would be rather in the nature of a final than of an interlocutory judgment.

The motions to dismiss are therefore de- . nied.