Succession of Twibill

16 La. Ann. 34

• Court: Supreme Court of Louisiana
• Decided: January 15, 1861
• Status: Published

Opinions

On a motion to dismiss:

Voobhtes, J.

The New Orleans Gas Light Company moves to dismiss this appeal, on the ground that it has not been made a party to the appeal, and also that two judgments, one of which is not appealable, are illegally embraced in the same appeal, although entirely different and distinct.

Carleton Hunt, in the capacity of liquidator of the partnership affairs of the firm of John Twibill and William Aitkins, took a rule upon J. M. Demarest, administrator of the estate of Aitkins, for the purpose of obtaining an account of the administration of Aitkins, deceased, who had been appointed liquidator of that firm previously to his death. M. B. Dubuis-son, as curator of the estate of John Twibill, deceased, and the attorney of the absent heirs, were made parties to this proceeding.

The curator denied the right of J. M. Demarest, administrator, to render an account of Aitkins’ administration of the affairs of the partnership; but this opposition was overruled by the court, and the rule taken by the liquidator made absolute.'

An account was filed by Demarest, which was opposed by, among others, the New Orleans Gas Light Company, who claimed an amendment of the account so as to be allowed interest on its claim.

The case, upon being tried in the court below, resulted in a judgment dismissing the oppositions and homologating the account. The curator and the attorney of absent heirs appealed, and executed a bond in favor of “ J. M. Demarest, administrator of the estate of William Aitkins et als. executors, administrators and assigns. ”

The proceeding by which the administrator of the estate of William Aitkins proceeded to classify the passive debts of the firm of John Twibill and William Aitkins, was unauthorized. His duty was merely to account for the funds, which had been left in the hands of Aitkins, and to pay the same over to the liquidator. This was not the proper time or occasion to discuss the merits of the claims of the creditors of the firm under charge of the liquidator. It follows, therefore, that the New Orleans Gas Light Company is not a necessary party to the appeal. Had it intervened for the purpose of inquiring, as a creditor, into the question of the assets to be handed over to the liquidator, its interest might then have been such as to make it a necessary party on appeal. Such is not the case, however.

The other objection is untenable. The interlocutory decree, ordering the administrator to file an account, necessarily comes up with the judgment homologating the account.

Motion dismissed.