Grainer v. Devlin

1 La. 169

• Court: Supreme Court of Louisiana
• Decided: April 15, 1830
• Status: Published

Opinion

Porter, J.

delivered the opinion of the court. This case commenced by attachment in the court of the first district, and the defendant, subsequent to its institution, having 'become insolvent, filed a petition against his creditors in the parish court. The cause •was transferred to that tribunal, and cumu-lated with the other proceedings in concurso.

While the suit was pending in the tribunal ‘before which it was instituted, the defendant -took a rule on the plaintiff, to shew cause why the attachment should not be set aside. Before this rule was disposed of, the case was transferred to the, parish court, and the parties proceeded to try it there. The judge was of opinion, the attachment must be set aside, and the plaintiff appealed.

The proper time for settling a question of privilege, is,upon filing a tableau of distribution. Where the existence of a debt is at issue, the plaintiff may proceed to establish his claim, notwithstanding the insolvency of his debtor.

The existence of the original debt is not disputed, and if the enquiry had no other object, but to ascertain whether there extsfed a privilege, in consequence of the attachment levied, we should say, as we did in the case of Astor vs. The Syndics of Saul, that the proper time of settling such question, would be on the syndic’s filing a tableau of distribution. But in the present instance, more is put at issue. If the attachment was properly brought, the estate of the insolvent is responsible fbr the cost incurred in sueing out the writ. If it was not, the plaintiff must pay them. The existence of a debt is therefore at issue, and we have more than once decide^, for reasons which need not now be repeated, that in such a case the plaintiff may proceed, notwithstanding the insolvency, and establish his debt_ 4. Martin, n. s. 632.

When the cause was on trial in the parish court, the defendants offered in evidence, cer-lain depositions, which had been taken and r . placed on file in that of the district. The plaintift objected to their introduction, because the judge who was to try the cause, should hear the testimony from the witnesses, unless prevented by some unforeseen circumstances. We think, with the judge below, that the testimony was admissible; that the cause was transferred from the one tribunal to the other, as it stood in that where it originated; # and that whatever were legal proceedings, and legal proof, in the latter, did not cease to be so by the transfer.

where a cause is transferred, testimony taken in the court of the first instance is admissible in that to which the case is transfer-ted.

The attachment was obtained, on an allegation, supported by the oath of the petitioner’s agent, that the defendant had left the state, never again to return. He did return after-wards, but we think with the counsel for the plaintiff, that this circumstance does not necessarily shew the allegation to be false, on which the writ was sued out. We have, however, given to the evidence an attentive consideration, and we are perfectly satisfied, that when Devlin left the state to go to New-York, he had the intention of returning, and that the attachment was improvidently taken out.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.