In re Pelican Saw-Mill And Manufacturing Company In Liquidation, 12,033

CourtSupreme Court of Louisiana
Writing for the CourtBREAUX, J. NICHOLLS, C.J.
Citation48 La.Ann. 711,19 So. 686
PartiesIN THE MATTER OF THE PELICAN SAW-MILL AND MANUFACTURING COMPANY IN LIQUIDATION
Docket Number12,033
Decision Date23 March 1896

19 So. 686

48 La.Ann. 711

IN THE MATTER OF THE PELICAN SAW-MILL AND MANUFACTURING COMPANY IN LIQUIDATION

No. 12,033

Supreme Court of Louisiana

March 23, 1896


January 20, 1896; January 6, 1896, Submitted; March 13, 1896, Argued

APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

Rice & Montgomery and Frank L. Richardson, for Receiver, Appellee.

Benjamin Rice Forman, for F. P. Bankston and J. B. Pelloat, Creditors, Appellants.

OPINION

BREAUX, J. NICHOLLS, C.J.

[48 La.Ann. 712] ON MOTION TO DISMISS.

NICHOLLS

J. H. O'Connor, receiver, filed in the District Court a provisional account of his disbursements; prayed that the same be advertised; that after due advertisement the account be approved and homologated; and that he be authorized to distribute the funds in his hands in accordance therewith.

F. P. Bankstone appears on the account as a creditor of the company as holder of two of the company's notes, one for one hundred and twenty dollars, the other for two hundred and thirty-nine dollars and sixty-four cents, and Peter Pelloat as a creditor as holder of a note for two hundred and thirty-three dollars and seventy-four cents.

The account, under orders of court, was duly advertised.

On November 27, 1895, the District Court ordered that the provisional account be approved and homologated, so far as not opposed.

On December 5, F. P. Bankstone and J. P. Pelloat, alleging "that they were aggrieved, and that there was error to their prejudice in the final judgment homologating the provisional account; that they are creditors of the insolvent corporation in liquidation, that accounts [48 La.Ann. 713] are allowed on said account, which are not due," moved for and obtained an order for a suspensive appeal from the judgment of homologation.

The receiver has moved to dismiss the appeal on the grounds:

1. The judgment is interlocutory and not final.

2. The motion and order to homologate in so far as not opposed is an ex parte order having for its effect only the exclusion of oppositions being filed after the date of the order.

3. It appears by the record that all of the items of the account were opposed so that no final judgment was rendered and a trial was necessary before the account could be finally homologated.

4. Because appellants delayed to file any oppositions to said account within the legal delays; they have not filed any opposition since or attempted to do so, and they are aggrieved by the order to homologate.

5. Because it is not necessary to introduce proof of the validity of the account other than the affidavit of the accountant when there is no opposition thereto, which affidavit was on file herein, and in this cause appellant filed no opposition.

6. Appellant has not filed a full and complete transcript of the record of the lower court and has omitted the four oppositions filed.

We find an admission in the transcript to the effect that in obtaining the judgment homologating the account of the receiver so far as not opposed, no note of evidence was taken and no evidence was offered except the affidavit of the deputy clerk, Rankin, that the account had been advertised in English and French for ten days and four oppositions had been filed thereto.

The transcript was made out according to instructions received by the clerk from appellants' counsel. In respect to the last ground of dismissal, they say that they thought the oppositions filed were entirely immaterial on the appeal, and that they had in their instructions to the clerk followed Rule 1, par. 6, and omitting all immaterial matter, had brought up the appeal on an agreed statement of facts. That if the court thought a knowledge of the oppositions material, they asked for an order in the nature of a certiorari to bring up copies, or to grant appellants leave to do so and not dismiss the appeal if an error had been committed in that respect.

Appellants maintain that a judgment signed by the judge ordering the payment of fifteen thousand three hundred and thirty-three [48 La.Ann. 714] dollars of the assets of an insolvent corporation is clearly a final judgment as to all persons who have not filed oppositions thereto before its rendition. They contend that, on application for the [19 So. 687] homologation of an account, proof is required in all cases as is required in confirming judgments by default. That on an appeal of this character, two questions usually arise: Was the judgment premature? Was it sustained by sufficient evidence?

Referring to the four oppositions which had been filed, they say that those who have opposed the account have...

To continue reading

Request your trial
2 practice notes
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...will not be made, and the allowance will not be made without proof. (Maxwell v. Mfg. Co., 82 F. 214; In re Pelican Saw Mill Co., 19 So. 686.) In view of the evidence as to the understanding of the parties at the time of Horton's appointment, the allowances were excessive in the extreme. The......
  • State v. Perry, 12,070
    • United States
    • Supreme Court of Louisiana
    • March 23, 1896
    ...should have been pushed further than it seems to have been made, and he should have made some report to Michel, who (and not defendant) [19 So. 686] had in fact employed him, of what had occurred, and asked of him some explanation as to why he should have been superseded by another, as appe......
2 cases
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...will not be made, and the allowance will not be made without proof. (Maxwell v. Mfg. Co., 82 F. 214; In re Pelican Saw Mill Co., 19 So. 686.) In view of the evidence as to the understanding of the parties at the time of Horton's appointment, the allowances were excessive in the extreme. The......
  • State v. Perry, 12,070
    • United States
    • Supreme Court of Louisiana
    • March 23, 1896
    ...should have been pushed further than it seems to have been made, and he should have made some report to Michel, who (and not defendant) [19 So. 686] had in fact employed him, of what had occurred, and asked of him some explanation as to why he should have been superseded by another, as appe......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT