State ex rel. Scallen v. Ellis

45 La. Ann. 241

• Court: Supreme Court of Louisiana
• Decided: January 15, 1893
• Docket: No. 11,181
• Status: Published

Opinion

The opinion of the court was delivered by

Nicholls, C. J.

Relator having failed to file an account and produce his bank book as syndic of the creditors of Henry E. G-autreaux, in the Civil District Court for the parish of Orleans, though legally cited and ordered so to do by the judge of Division “A” of that court —a rule was regularly served upon him to show cause why he should not be punished for contempt of court for refusing to do so.

He has filed an application in this court for writs of certiorari and prohibition, commanding the judge of Division “A” to abstain from executing an order by him rendered directing relator’s imprisonment for contempt of court.

We do not find the order referred to in the record, and we have reason to believe that though threatened, it has not as yet been made.

We have, however, examined the proceedings as far as they do appear of record, and find that on the day fixed for the trial of the rule, relator and his counsel appeared, and on their promise to comply the next day with the court’s orders, the proceeding was carried over to that time to enable him to do so, but that when the present proceeding was instituted, and even up to the time respondent filed his answer herein, nothing had been done by relator.

We find the proceedings regular, legal and within the jurisdiction of the judge who gave the order.

The reasons assigned to us as those which warranted non: compliance, should have been addressed to the judge of the lower and not to this court.

Relator was afforded an opportunity to show cause if any he had why he should not file his account, but instead of presenting himself and urging his grounds, he completely ignored the order. There was no necessity, for the purpose of explaining his situation, of any thorough knowledge of the affairs of the insolvency, if his reasons at that time were those which he has brought to our notice.

Any attorney at the bar could have easily represented him had he been unwilling, or felt himself unable, to appear personally.

The fact that he considered himself as having high privileged claims to the amount he mentions did not justify him in seeking to avoid all accountability for his actions, or for the funds in his hands.

He could and should have made a statement, and a simple one would have sufficed, as to what his pretensions were, and given the other creditors an opportunity of knowing what they were, and of testing them if they thought proper to do so.

If his course was in good faith, under advice of counsel in whose legal judgment he relied, he should have stated that fact to the district judge, who would unquestionably have given it the weight it was entitled to, and (unless we are mistaken as to the conclusion we have draw.n, that no order of imprisonment for contempt has as yet been issued) it is doubtless not yet too late for him to do so. He will have to look for relief to the District Court and not to ns.

For the reasons herein assigned the provisional orders heretofore granted in this ease are rescinded, and the writs asked for are refused.