West v. His Creditors

3 La. Ann. 529

Opinions

The judgment of' the court was pronounced &y

Rost, J.

*

In the case of West v. His Creditors, 1 Annual R. 365, we refused to allow Francois Duplessis, Jr., a claim' of $2368, alleged to have been paid by him to the'United States fora custom-house bond of the insolvent, on which he was one of the sureties. The claim Was rejected on the ground’ that the evidence adduced in support of it, if admissible, went to show that the-payment had been made by the father of the claimant. The funds then in the' hands of the syndic were ordered to be distributed according'to the tableau annexed to the decree. Other assets of the insolvent having since been received,, the syndic filed a tableau of distribution in conformity with that decree. Francois Duplessis, Jr., in his capacity of testamentary executor of his father,, opposed the homologation of the tableau, claiming to be paid by priority to the other creditors, the-aforesaid sum, with interest at six per cent per annum since it was paid by his father. The attorney of absent creditors filed a plea of res judicata, and the syndic otherwise- opposed the claim, and has pleaded prescription in this court. The opposition was dismissed, and- the executor has appealed.

The plea of res judicata cannot be sustained. The demand in this and' the former case is not'between the same parties, in the same capacity. In the first case, the opposing creditor claimed in his own right; he now claims in right of his father, whose legal representative he is. The exception of the thing adjudged is stricti juris,.and if there should be doubt.as to the identity of the things claimed, or of the persons claiming them, it cannot be maintained. 5 Touillier, no. 492. Cloutier v. Lecomte, 3 Mart. 481. In these cases, 'there is no doubt that the party claiming is not the same.

On the merits, we are of the opinion that evidence was admissible to show by whom the judgment rendered on the .custom-house bonds had really been paid, notwithstanding the declaration in the marshal’s return that it was satisfied by Abner L. Duncan. This declaration was no part of the return required by law; and, if it had been, the opponent had the right to prove that his testator subsequently refunded oneJhaIf of the amount. The evidence satisfactorily establishes that fact. The United States were entitled to priority-over ordinary creditors, and to interest.at the rate of six per cent per annum. Duncan, being one of the parties to the bond, became subrogated to the rights of the United States against West, when he paid the judgment. Code of 1808, p. 290, article 151.

Francois Duplessis, Jr. subsequently refunded to Duncan the sum now claimed, and his light to priority depends upon the relations existing at the time between him and West, as creditor and debtor.

On the 16thof May, 1818, West acknowledged himself indebted tollin'! 'in the sum of $5400, and gave him a mortgage to secure that amount. That debt matured on the 16th May, 1819. On the 1st February of that year, West had applied for a respite, which was subsequently changed into -a .cessio bonorum. On the 1st June following, Duplessis, proceeding under a subrogation from a creditor who held the first mortgage on the property mortgaged to him, caused that property to be sold, and out of the proceeds of the sale satisfied this mortgage, and received $966 25 on his own, thus remaining an ordinary creditor of West to Che amount of $4433 75, for which sum he was placed on the former tableau of distribution. On the '5th November,' 1819, when he paid Abner L. Duncan the sum claimed, he was an ordinary creditor of West, and Duncan's claim, being entitled to priority, was preferable to his. Under the laws then ■in force, subrogation took place of right for the'benefit of those who, being themselves creditors, paid another creditor whose claim was preferable to theirs. Code of 1808, p.'290, article 151.

This claim is not barred by prescription. The assets left by an insolvent are the common pledge of his creditors. That pledge continues as long ’as there are assets to be divided.

We are of opinion that the opposition should have been sustained.

It is, therefore, ordered that, the judgment appealed from be reversed, and ■that the succession oí Francois Duplessis, Sr., recover from the syndic of the .insolvent, John K. West, the sum of '$2368 40, with interest at the rate of six ■per cent per annum, from the 5th of November, 1819, till paid, to be paid by ■priority, and in due course of administration. It is further ordered that, the tableau filed be amended so as to conform with this decree, and that the costs in .hoth.courtsbe paid out of the-.assets in .the hands of the syndic.

Whore there is doubt upon a question of res judicata, tho party against whom the plea is set up should have the benefit of that doubt. A judgment homologating a tableau of distribution presented by the syndic of an insolvent, and declaring that it shall st and " as the final tableau of distribution of the funds in the hands of the syndic,” on which a creditor, who opposed the homologation, was placed as an ordinary creditor, cannot be pleaded as res judicata to an opposition by the same creditor, to a second tableau, for the distribution of other funds, on which he claimed to be placed as a privileged creditor for the same debt. The homologation has the force of res judicata only as to the funds proposed to be distributed by the first tableau. Horner, for the absent creditors,

prayed for a re-hearing, contending that a judgment of homologation, so far as it settles the rank and privilege of the creditors is final, and must have the authority of the thing adjudged, citing 14 La. 242, and the cases there quoted. H. D. Ogden, argued on the same side.

Eustis, C. J. did not sit on the trial of this case, being interested. The opinion read by Rost,,X, was pronounced on the 23 of November, 1847,