In re the Pelican Saw-Mill & Manufacturing Co.

48 La. Ann. 711

• Court: Supreme Court of Louisiana
• Decided: March 13, 1896
• Docket: No. 12,033
• Status: Published

Opinions

On Motion to Dismiss.

The opinion of the court was delivered by

Nicholls, C. J.

J. H. O’Connor, receiver, filed in the District ■¡Court a provisional account of his disbursements; prayed that the ¡same be advertised; that after due advertisement the account be Approved and homologated; and that he be authorized to distribute •,the funds in his hands in accordance therewith.

F. P. Bankstone appears on the account as a creditor of the com-vpany as holder of two of the company’s notes, one for one hundred and twenty dollars, the other for two hundred and thirty-nine «dollars and sixty-four cents, and Peter Pelloat as a creditor as ¡holder of a note for two hundred and thirty-three dollars and «seventy-four cents.

The account, under orders of court, was duly advertised.

On November 27, 1896, the District Court ordered that the provisional accountbe approved and homologated, so far as not opposed.

On December 6, F. P. Bankstone and J. P. Pelloat, alleging “that ■¡they were aggrieved, and that there was error to their prejudice in ¡the final judgment homologating the provisional account; that they Are creditors of the insolvent corporation in liquidation, that accounts are allowed on said account, which are not due,” moved for and obtained an order for a suspensive appeal from the judgment of homologation.

The receiver has moved to dismiss the appeal on the grounds:

1. The judgment is interlocutory and not final.

2. The motion and order to homologate in so far as not opposed is an ex parte order having for its effect only the exclusion of oppositions being filed after the date of the order.

3. It appears by the record that all of the items of the account ■were opposed so that no final judgment was rendered and a trial was necessary before the account could be finally homologated.

4. Because appellants delayed to file any oppositions to said account within the legal delays; they have not filed any opposition since or attempted to do so, and they are aggrieved by the order to homologate.

6. Because it is not necessary to introduce proof of the validity of the account other than the affidavit of the accountant when there is no opposition thereto, which affidavit was on file herein, and in this cause appellant filed no opposition.

6. Appellant has not filed a full and complete transcript of the record of the lower court and has omitted the four oppositions filed.

We find an admission in the transcript to the effect that in obtaining the judgment homologating the account of the receiver so far as not opposed, no note of evidence was taken and no evidence was offered except the affidavit of the deputy clerk, Rankin, that the account had been advertised in English and French for ten days and four oppositions had been filed thereto.

The transcript was made out according to instructions received by the clerk from appellants’ counsel. In respect to the last ground of dismissal, they say that they thought the oppositions filed were entirely immaterial on the appeal, and that they had in their instructions to the clerk followed Rule 1, par. 6, and omitting all immaterial matter, had brought up the appeal on an agreed statement of facts. That if the court thought a knowledge of the oppositions material, they asked for an order in the nature of a certiorari to bring up copies, or to grant appellants leave to do so and not dismiss the appeal if an error had been committed in that respect.

Appellants maintain that a judgment signed by the judge ordering the payment of fifteen thousand three hundred and thirty-three dollars of the assets of an insolvent corporation is clearly a final judgment as to all persons who have not filed oppositions thereto before its rendition. They contend that, on application for the ho-mologation of an account, proof is required in all cases as is required in confirming judgments by default. That on an appeal of this character, two questions usually arise: Was the judgment premature?' Was it sustained by sufficient evidence?

Referring to the four oppositions which had been filed, they say that those who have opposed the account have control of their oppositions and they may at any time withdraw them.

We can not accede to the proposition that an order of court ho-mologating a tableau of distribution presented by the administrator of a succession, or a receiver, as far as not opposed, is not appeal-able for the reason that it is merely an interlocutory, not a final decree. Appellee himself shows by authority that within a limited time, if the order be not appealed from, the funds would be paid out to the various creditors named in the account. This would or might lead to irreparable injury to other creditors. It is claimed that the effect of the decree is simply to close the door to further oppositions; but this very closing of the door may itself be wrongful and injurious. It might be that the account had not been duly and legally advertised, or that the account had been prematurely ho - mologated. This would be an issue we think properly to be presented on appeal. There may be other issues of similar character, which we can not now anticipate. Appellee says that in this particular case there is no propriety or necessity for an appeal, as there are now pending undisposed of, four oppositions to the same account covering all the items of the account. The oppositions are not in the transcript, but appellants do not deny that they are of the character stated, and for the purposes of this motion we can assume that they are as appellee represents them to be.

Upon this assumption we do not think the appeal should fail. The fact that appellants might be still in time to join in these oppositions does not destroy the right of appeal. The fact that an existing legal right may be injudiciously or unnecessarily exercised does not authorize a court to declare the right non-existent. Byrne vs. Hooper et als., 2 Rob. 229; Succession of Jerome, 21 An. 291; Succession of Rhea, 31 An. 323; Newman vs. Judge, 32 An. 207; Borde vs. Erskine et al., 33 An. 873.

The penalty for such an exercise of a right would finally develop itself, but in a different manner. We do not feel at liberty .to anticipate, on a motion to dismiss, the issues which the appellants propose to submit to us. On a trial of the merits we could announce certain issues as not having been properly brought up on appeal, and others as having no merit.

Should the present case! be one where either improper issues or untenable issues be presented, appellee will suffer no injury by having our conclusion announced after a full presentation of the case.