Killeen v. Boland, Gschwind Co., Limited

• Decision Date: 01 December 1924
• Docket Number: 24269
• Citation: 157 La. 566,102 So. 672
• Court: Louisiana Supreme Court
• Parties: KILLEEN et al. v. BOLAND, GSCHWIND CO., Limited

102 So. 672

157 La. 566

KILLEEN et al. v. BOLAND, GSCHWIND CO., Limited

No. 24269

Supreme Court of Louisiana

December 1, 1924

[Copyrighted Material Omitted]

Original Opinion of February 25, 1924, Reported at 157 La 566, 102 So. 672.

LAND, J. OVERTON and THOMPSON, JJ., dissent.

OPINION

LAND, J.

On Rehearing.

LAND J. On the highest grounds of necessity and public policy judges cannot be held liable for acts done by them in their judicial capacity. It follows, therefore, that executive officers of the court, such as receivers, cannot be sued for acts which they do in obedience to the orders of the court appointing them. Clark, Law of Receivers, vol. 1, par. 784, p. 743.

The property was sold in this case, not by the receivers, as the agents of the court, but by an auctioneer, an independent official, appointed by the court to make this sale.

Without any knowledge upon the part of the receivers that the auctioneer had sold the property for less than two-thirds of its appraised value, the receivers reported the sale and the price in good faith to the court, and prayed for the confirmation of the sale and authority to deliver the property to the adjudicatees at the auction sale. The sale was confirmed and the receivers delivered the property to the purchasers under the order of confirmation first obtained by them. The fact that the application for confirmation of the sale was not preceded by entry for 10 days in the receiver's order book, as required by section 8 of Act 159 of 1898, does not, in our opinion, render said order an absolute nullity, as far as the protection of the receivers against personal liability is concerned. The order may be irregular or improvident; yet, at the same time, it is an order of the court, obtained in good faith, and without fraudulent representation on the part of the receivers, and there is no charge in this case that the property was delivered by the receivers to the purchasers through collusion.

The receivers under such order must necessarily be protected against personal liability, notwithstanding the subsequent vacation of same.

In the case of Bonita Mercantile Co., 129 La. 1046, 57 So. 332, the Supreme Court of this state refused to hold a receiver, who had made the sale, liable for the difference between the first appraisement regularly made and a second appraisement informally made by the receiver, and which had not been preceded by a required order, although such appraisement was attacked as a nullity by a creditor opposing the final account of the receiver.

There has been no attempt on the part of the opposing creditors in this case to vacate this order in any direct proceeding, nor was the auctioneer's sale opposed by them.

Section 6 of Act 159 of 1898 provides that --

"The receiver so appointed shall give such bond for the faithful performance of his duties as the court may fix; and shall hold, administer, manage and dispose of the property and income of such corporation in such manner as the court may decide to be for the interest of all parties."

When a receiver acts, therefore, under an...