L. J. Mestier & Co. v. A. Chevalier Pavement Co., Ltd.

• Decision Date: 01 January 1901
• Docket Number: 14,029
• Citation: 108 La. 562,32 So. 520
• Parties: L. J. MESTIER & CO. v. A. CHEVALIER PAVEMENT CO., LTD
• Court: Louisiana Supreme Court

32 So. 520

108 La. 562

L. J. MESTIER & CO. v. A. CHEVALIER PAVEMENT CO., LTD

No. 14,029

Supreme Court of Louisiana

January 1, 1901

Rehearing refused.

APPEAL from the Civil District Court, Parish of Orleans -- St Paul, J.

Benjamin Rice Forman, for Plaintiffs, Appellees.

Dinkelspiel & Hart, for A. Chevalier Pavement Company, Limited Defendant, and H. B. McMurray, Receiver, Appellants.

Henry Chiapella, for Mrs. Marie Louise Delcalzal, Intervenors Appellant.

BREAUX, J. NICHOLLS, C.J.

OPINION

BREAUX, J.

ON MOTION TO DISMISS.

NICHOLLS, C. J.

The plaintiffs move to dismiss the appeal of H. B. McMurray, receiver, on the grounds:

1st -- That he has no interest in the controversy between plaintiff and defendant and was only appointed for the purpose of collecting the paving certificates pledged by defendant to plaintiffs.

2nd -- The district judge had no power to grant to H. B. McMurray a suspensive appeal from a money judgment exceeding two thousand dollars on a bond of two hundred and fifty dollars, and the order for a suspensive appeal should be rescinded, and is not sufficient to give this court jurisdiction of the appeal.

The application for the dismissal of this appeal is supported by no brief in behalf of the same.

Counsel can scarcely expect this court to seek and ascertain for itself the facts on which such a motion is based.

We are told that the receiver has no interest to appeal, but the lower court, which was fully advised of the situation, granted him one. And we are informed by appellants' brief that the appellee made an unsuccessful attempt in the lower court to have the order for the same rescinded on the ground of want of interest.

In order to ascertain what interest the receiver has in the matters involved and what issues he has raised or proposes to raise on appeal, we would have to examine a very large transcript, without any aid or assistance from counsel. The whole case is before us on appeal of other parties and from the information to be obtained by us later we will be able to deal advisedly with the rights of all parties. If the receiver has no interest in the controversy, we can so declare at that time. (Succession of Fortier, 51 Ann. 1567, 1568.)

The receiver, as appellant, furnished a bond of appeal for two hundred and fifty dollars, the amount of bond ordered by the court. The appeal cannot be dismissed on the ground that the amount is too small. The appeal is good at least as a devolutive appeal.

For the reasons assigned, the application is denied.

ON THE MERITS.

BREAUX J.

Plaintiff claims from defendant part of the proceeds of a joint venture. Plaintiff advanced funds to the defendant to enable it to execute contracts awarded to it to pave streets.

Plaintiff and defendant agreed to submit their differences to an amicable compounder. After he had made return of his action into court and the judge had homologated it and subsequently entered judgment in favor of plaintiff for the balance found due by defendant, on application of the defendant for a new trial, the court annulled the finding of the amicable compounder and again rendered judgment in favor of plaintiff after having deducted items not passed upon by the amicable compounder, as they had not been brought before him for arbitration. This is the judgment before us on appeal.

Mrs. Delcazel, a judgment creditor of the defendant, intervened in this suit and asked for judgment recognizing her claims, and further that the claim made by the plaintiff against the defendant be rejected to the extent of her interest and her judgment paid.

In the course of the litigation, H. B. McMurray, sheriff, was appointed receiver.

The District Court rendered judgment in favor of the plaintiff against the defendant in the sum of four thousand nine hundred and thirty-eight and 49-100 dollars ($ 4938.49), with legal interest from December 22nd, 1897, subject to a credit of one thousand and ninety-eight and 77-100 dollars ($ 1098.77.)

The court maintained the judicial sequestration which had been issued and under which paving certificates issued by the City Engineer of New Orleans had been sequestered and recognized a lien in favor of plaintiff and ordered that it be paid by preference from the proceeds of these certificates. To that end, Mr. McMurray, civil sheriff, and receiver, after having deducted his costs and reasonable charges was ordered to pay to plaintiff in liquidation the funds in his hands arising from the collection of these paving certificates and to hand over to the plaintiff the paving certificates remaining in his possession which had not yet been collected.

The right was decreed to plaintiff to recover from the succession of Moise an amount to which we will refer hereafter.

With reference to the intervenor, the court maintained the intervention and third opposition of Mrs. Marie Louise Delcazal to the extent of recognizing her as a judgment creditor of the defendant for the amount claimed to be paid from the paving certificates after satisfaction of plaintiff's claim and the right was reserved to her to compel plaintiff to account to her.

We have found no difficulty in arriving at the conclusion that the report of the amicable compounder is not authoritative and to be taken as the basis of a judgment. It was annulled for good cause. The amicable compounder had not taken the requisite oath and all needful facts were not furnished him to enable him to make a complete return. The finding of the amicable compounder was annulled by the District Court and no sufficient complaint is made in the pleadings to bring up the lower court's ruling for review on appeal as relates to this finding. We take it that plaintiff, in whose favor it was rendered, does not seriously complain of the decree setting it aside. The compounder evidently has business training and while, for good reason, his report was annulled, for cause not in his control, yet it may be consulted to the extent that it may assist in arriving at a conclusion.

Defendant complains of the court's ruling under which evidence, over their objection, was admitted to support claims which was inadmissible under the pleadings because (it urges) it was evidence of one of the defendant's personal indebtedness and not of corporation indebtedness of defendant. We have not found that this evidence was inadmissible. There must be an end to all things, even to law suits, and a ruling to that end admitting testimony unless manifestly erroneous affords no good ground to set aside a decision in so far as it appears to have done justice between the parties, and it is manifest that no one has been taken by surprise.

Taking up the contested items of the account, we come first to the contested item of one hundred and twenty dollars ($ 120.00), properly credited, as we think. We have not found that, as charged, in the acts of plaintiff and approved by the judgment, defendant was made to lose it.

Taking up the different credits to which the defendant is entitled, the next item in dispute is an amount for cement. The court a qua was not impressed by defendant's denial of indebtedness. We have not found that the testimony would warrant us in striking out this item.

This brings us to an item of one hundred and forty-one and 24-100 dollars ($...