Labouisse v. Orleans Cotton Rope & Manufacturing Co.

43 La. Ann. 582

• Court: Supreme Court of Louisiana
• Decided: May 15, 1891
• Docket: No. 10,758
• Status: Published

Opinion

The opinion of the court was delivered by

McEnery, J.

The plaintiff and the Oanal Bank, judgment creditors of the defendant company, issued executions on their judgments, seized and sold the property of the company. These judgments were obtained on notes upon which J. B. Lallande was the endorser. Lallande was the president of the company. He went into insolvency.

After these judgments were obtained, Lallande, president of said company, confessed judgment in favor of Eugene Soniat, the syndic of this insolvency, against said company for a large amount.

The confession of judgment, which was rendered executory, was predicated upon two items of indebtedness; the endorsements upon which the plaintiff and the Oanal Bank had obtained judgments, and for advances made to the defendant company by Lallande.

The plaintiff and the bank each took a rule on the sheriff to distribute the proceeds of the sale of the property seized and sold under their executions.

Eugene Soniat, syndic, filed a third opposition, claiming that by virtue of the judgment rendered on the confession of Lallande in favor of his insolvency and against said company, he, as syndic, had a priority on said proceeds over the seizing creditors.

The rules were made absolute. Soniat, syndic, appeals.

The rules were fixed for trial and continued to another day, when they were tried. The syndic complains of the denial of his application for a continuance. The grounds alleged are that he was an important witness and that he was absent on business in a neighboring court on behalf of the insolvency.

The continuance was applied for during the course of the trial.

Had the syndic been present and testified, his evidence could have no material bearing on the case. He could' not establish an indebtedness when none existed, nor could he create a privilege when the law allowed none.

The trial judge, however, disposes of the whole matter, in his statement, where he says the continuance was applied for to delay the ease. In such case the discretion of the trial judge will not be interfered with. Cameron vs. Lane, 36 An. 76.

The petition on which the confession of judgment was based shows that the defendant company owed Lallande nothing as indorser. He did not pay the notes.

The account annexed to the petition is not a privileged claim.

Lallande, as the indorser of the notes given by the company to the plaintiff and the Canal Bank, could not compete with them out of the fund realized from the sale of the company’s property, as the company was a solidary co-debtor with him.

The Mutual National Bank was also a judgment creditor of the defendant company. The syndic complains that the bank was not made a party to the note. This is a matter that does not concern the syndic. It was the privilege of the bank to assert its own rights.

It is suggested in the brief filed by the syndic that, as the seizure was made in Division B of the Civil District Court, no other division had jurisdiction to regulate the seizure.

The Civil District Court had jurisdiction of the case. The divisions are parts of the. same court. The objection made comes too late. It ought to have been urged in limine in the lower court. Perine vs. Riley, 39 An. 303; James vs. Meyer, 43 An. ante, 38.

Judgment affirmed.