Aetna Casualty & Surety Co. v. Sentilles

• Decision Date: 25 March 1935
• Docket Number: 1433
• Citation: 160 So. 149
• Parties: AETNA CASUALTY & SURETY CO. v. SENTILLES
• Court: Court of Appeal of Louisiana — District of US

160 So. 149

AETNA CASUALTY & SURETY CO. v. SENTILLES

No. 1433

Court of Appeal of Louisiana, First Circuit.

March 25, 1935

St Clair Adams and St. Clair Adams, Jr., both of New Orleans for appellant.

Borron Owen & Borron, of Plaquemine, for appellee.

OPINION

LE BLANC, Judge.

In 1929, plaintiff company brought suit against defendant for $ 1,200 on a promissory note, with interest, alleging for value received and which was annexed to the petition.

In January, 1930, judgment was rendered by the district judge in favor of plaintiff for the amount claimed.

In December, 1933, a writ of fieri facias was issued on the judgment ordering the sheriff to seize all the property real and personal, rights and credits of R. F. Sentilles, defendant.

In answer to interrogatories propounded to it, the A. Wilbert's Sons Lumber & Shingle Company admitted that defendant, R. F. Sentilles, was in their employ at a salary of $ 150 per month.

On a rule taken by plaintiff against A. Wilbert's Sons Lumber & Shingle Company, as garnishee, the court rendered judgment against that company ordering it to pay plaintiff 20 per cent. on the salary it was paying to Sentilles, until plaintiff's judgment was fully paid.

The garnishee having refused to pay the plaintiff's judgment as ordered by the court, not knowing who was legally entitled thereto, Sentilles took out a rule on the Wilbert's Sons Lumber Company, garnishee, to show cause why the judgment rendered in favor of plaintiff, the AEtna Casualty & Surety Company, against Sentilles, on January 20, 1930; also, the judgment rendered in favor of plaintiff against A. Wilbert's Sons Lumber and Shingle Company, garnishee, on February 14, 1934, should not be ordered canceled and set aside.

This rule for the canceling of these judgments was sued out by Sentilles on the allegations supported by the record which are, that, in his application filed in the United States District Court for the Eastern District of Louisiana to be adjudicated a bankrupt, he had included in his schedule of indebtedness the judgment, hereinabove referred to, in favor of plaintiff, the AEtna Casualty Company; that on the 22d day of February, 1934, he had been formally adjudicated a bankrupt by said court and had on the 19th day of May, 1934, been formally discharged in bankruptcy. He therefore avers that by his discharge in bankruptcy he is relieved from all claims which existed against him on the 22d day of February, 1934.

The AEtna Casualty & Surety Company, defendant in the rule obtained by Sentilles for the cancellation of the judgments against him, as hereinabove stated, answered the rule by averring that it had issued a bond for the protection of the Consolidated Companies, Inc., against fraud, embezzlement, or misappropriation of funds on the part of Sentilles, who was cashier, salesman, and bookkeeper for the St. Martin Wholesale Grocery Company, branch of the Consolidated Companies, Inc., that Sentilles notified the Consolidated Companies, Inc., of having misappropriated $ 1,200 of their funds, for which the defendant company had to account under its bond.

The AEtna Casualty & Surety Company, defendant, therefore avers in its answer to the rule, that the debt due to it by Sentilles is not dischargeable in bankruptcy on the ground, "first, that this is a debt created by fraud, embezzlement, misappropriation or defalcations while acting as an officer or in any fiduciary capacity; second, that it is a willful and malicious conversion of funds."

In July, 1934, on the trial of the rule for the cancellation of the judgment, the AEtna Casualty & Surety Company, defendant in rule, called R. F. Sentilles for cross-examination under the provisions of Act No. 126 of 1908, and propounded to him the following question through Mr. Adams, counsel for defendant in rule, quoting: "Mr. Sentilles did you embezzle or misappropriate $ 1200.00 of the funds of the Consolidated Companies Inc., for whom you were working in the months prior to June 28, 1926?"...