Potier v. Harman

1 Rob. 525

Opinions

Simon, J.

*

This case comes before us in a very imperfect state. The plaintiff, who seeks to set aside a sale of certain goods, which he alleges was made by one of the defendants to the other, in fraud of his privileged rights, prayed that both his debtor and Breisgass, the vendee, might be cited, that a writ of sequestration might be issued, the goods be sold, and that he have judgment against both defendants for the amount due him. Breisgass, only* was cited, and joined issue. His co-defendant does not appear to have been cited, nor, if he was absent from the state, was any curator ad hoc appointed to represent him. In this state of the case, the parlies before the court proceeded to trial; a verdict was found by the jury in favor of the plaintiff, and the defendant, Breisgass, after an attempt to obtain a new trial, appealed. It is alsq to be noticed; that the judgment of the court was rendered on the 10th of January, that the motion for a new trial was made on the 14th, and that on the 17th, after the judgment, an attorney was appointed by the court to represent the absent defendant, Harman.

Schmidt, for the plaintiff. Randall, for the appellant.

It is perfectly clear, that this action, which is one to revoke a contract made in fraud of the rights of a privileged creditor, could not be exercised against Breisgass alone, since the debt claimed by the plaintiff, had never been liquidated by a judgment; and it was necessary, in order to reach the plaintiff’s objects, that both the parties against whom the fraud is alleged, should have been represented in the suit. Civil Code, arts. 1967, 1970, and 1971. It is true, that the plaintiff, in his petition, prayed that his debtor might be cited, and it must have been a great oversight on the part of his counsel, to have proceeded to' judgment, without having the defendant, Harman, legally represented. We. think, however, that the justice of the case requires that it should be remanded.

It is, therefore, ordered, that the verdict be set aside, and the judgment of the District Court be reversed ; that this case be remanded for further proceedings ; and that the plaintiff and’ appellee pay the costs in this court.

Where an appeal has been taken, and bond and security given according to law, the inferior court has no further cognizance of the case, than to send up the record. One who has sustained no injury by a sale, has no right to annul it, though it may have been intended to defraud him. Schmidt, prayed for a re-hearing:

First.-Because the appellate court could n.ot take cognizance of the appeal, which had been dismissed by the District Court, unless such dismissal had been appealed from, which was not the case. To entitle a defendant to an appeal, he must give bond, with good security, residing within the jurisdiction of the court, &c. Code of Prac,, 575. The plaintiff has a right to show the insufficiency of the security, which cannot he done in the appellate court, as it involves a question of'fact, depending on the testimony of witnesses. Unless the lower court possess the power of rescinding the appeal, the plaintiff may be deprived of his clearest rights.

Secondly. Because it was unnecessary to obtain a judgment against Harman, previously to proceeding against Breis'gass. The action is ex delicto, and both defendants are liable in solido. Mori-zart, fyc. v. Jacquinet. 2 Dallez, 1829. Jurisprud. XIX Siecle, p. 136. Where parties are liable in solido, either may he sued.

Randall, for the appellant.

This opinion was delivered, March 30th, 1840.