Marine Oil Co., Limited v. Cutler Bros., Inc.
| Decision Date | 03 January 1938 |
| Docket Number | 5525 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | MARINE OIL CO., Limited, v. CUTLER BROS., Inc., et al |
Theus Grisham, Davis & Leigh, of Monroe, G. Frank Purvis, Jr., of Rayville, and Adam H. Harper, of New Orleans, for appellant.
Warren Hunt and T. J. Coenen, Jr., both of Rayville, for appellees.
In an effort to obtain satisfaction of a moneyed judgment which was awarded to it against Cutler Brothers, Incorporated, in cause No. 8965 on the docket of the Fifth judicial district court of Richland parish, plaintiff instituted this suit against Premium Petroleum Products, Incorporated, and Cutlers, Inc. The two last-named corporations are one and the same, there having been merely a change of name under a charter amendment. For convenience and to avoid confusion, we shall refer to the defendant in this proceeding as the Premium Company.
Plaintiff seeks to hold the Premium Company liable for the indebtedness under the averment and theory that the latter acquired all of the worthwhile assets and is merely a continuation of the judgment debtor corporation, Cutler Bros., Inc. It alleges in the alternative that the assets were transferred in bad faith and in fraud of creditors.
The primary prayer of the petition is for judgment against defendant for the amount of its judicially recognized claim. In the alternative, it prays that the above-mentioned transfer of assets be annulled and set aside. In the further alternative, plaintiff prays that the assets be decreed subject to seizure and sale under its existing judgment.
The Premium Company, in its answer, denied generally the averments of the petition. It affirmatively alleged that the transfer of assets was in good faith and for a good, valid and legal consideration, and that the judgment debtor maintained its corporate status after the transfer.
After trial of the merits of the case, there was judgment rejecting plaintiff's demand. It appealed.
Appellee has filed in this court a motion to dismiss the appeal. Under this motion it shows that on February 9, 1937, plaintiff's counsel moved in open court for orders of appeal. These were granted and the appeal made returnable to this court on or before April 1, 1937; but no appeal was perfected thereunder. On April 26, 1937, the same counsel moved in open court and obtained new orders of appeal, returnable here on or before June 1, 1937. A devolutive appeal was perfected under these orders. The contention is then made that the new orders of appeal should not have been granted without citation or notice of some kind being given to appellee. It is argued that a watch was kept for the filing of an appeal bond under the original motion, and when such bond was not filed, the appeal was regarded as having been abandoned. We are cognizant of no law, and have been cited to none, which sustains appellee's position under the motion to dismiss. Orders of appeal may be obtained either by petition or by motion in open court, at the same term at which the judgment was rendered. Code Prac. art. 573. The word "term," as used in the cited codal article, is synonymous with the word "session," and if the appeal is taken within the same ten-month session, in which the judgment is rendered, as was done in the instant case, no citation is necessary. Deal v. Sovereign Camp, W. O.W., La.App., 161 So. 621.
With reference to the obtaining of more than one order for a devolutive appeal during such term or session, appellants' counsel, in their brief, correctly give our view when they state that
The motion to dismiss is overruled.
Proceeding now to a consideration of the merits of the case, it is to be observed that Cutler Bros., Inc., the judgment debtor, was chartered on February 5, 1926, with an authorized capital of $ 50,000, divided into and represented by 500 shares of stock of the par value of $ 100 each. The stock was subscribed for as follows: R. B. Cutler, 229 shares; C. C. Cutler, 229 shares; E. L. Cutler, 22 shares; and D. M. Williamson, 20 shares. The officers of the corporation were R. B. Cutler, president, E. L. Cutler vice president, and C. C. Cutler, secretary-treasurer. Its objects and purposes, as expressed in the charter, were:
"To own, lease, maintain and operate automobile filling stations, to buy and sell, both at wholesale and retail, gasoline motor oils and all lubricating oils commonly used in automotive power; to buy and sell tubes, tires, and all kinds of automobile parts, tools, implements and automobile accessories of every kind; to own, sell and rent all kinds of automobiles, trucks, tractors, and all other vehicles driven by motor power; to buy, own, sell, and lease and trade in all kinds of real estate; to build, repair and construct houses both for itself and as a business; to do a general wholesale and retail business in all kinds of automobile accessories; to carry on the business of washing, repairing and cleaning cars; to buy, sell and trade in stock in other corporations; to borrow money and issue promissory notes or bonds therefor and to secure the same by mortgage or pledge of any or all of its property; to make, accept and execute promissory notes, bills of exchange and other negotiable instruments, and to do all things necessary and incidental for the objects and purposes for which this corporation is formed."
While conducting its operations and activities, said corporation contracted an indebtedness with plaintiff company, which on July 1, 1931, balanced the sum of $ 712.70. Between that date and September 28, 1932, it paid $ 150 on the account, thus leaving due $ 562.70. It was this last-mentioned amount for which plaintiff obtained judgment against its said debtor, Cutler Bros., Inc., on April 20, 1934.
The capital stock of the last-mentioned corporation was fixed at the sum of $ 10,000, divided into 100 shares of the par value of $ 100 each. The entire stock was subscribed for and issued as follows: Cutler Bros., Inc. (the judgment debtor), 95 shares; R. B. Cutler, one share; C. C. Cutler, one share; E. L. Cutler, one share; Warren Hunt, one share; and Winnie Kline, one share. The corporation's officers were: R. B. Cutler, president; E. L. Cutler, first vice president; Warren Hunt, second vice president; Winhie Kline, secretary; and C. C. Cutler, treasurer. The share held by each of the Cutlers was, according to the testimony of C. C. Cutler, paid for partly with cash and the balance in services; and this constituted all of the cash paid to the corporation for issued stock. The two shares held by Warren Hunt and Winnie Kline were paid for with services rendered. The subscriber for the remaining 95 shares, which was the judgment debtor, Cutler Bros., Inc., obtained its stock by the transfer to the newly organized corporation of personal or movable property having an appraised value of $ 9,500. This consisted of office furniture and fixtures valued at $ 905, merchandise worth $ 500, and gasoline trucks and garage equipment; and it constituted all of the personal property owned by the transferor, except certain accounts and notes receivable which C. C. Cutler estimated to be worth approximately $ 40,000.
With reference to the aforementioned transfer, the charter of the newly organized corporation provides:
"Appearers attach hereto and make a part hereof a list of property, with values thereof, which are agreed upon by them to be just and fair values, and at which prices they purchase same from Cutler Brothers, Incorporated, and in payment thereof issued ninety-five (95)...
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