Mullan v. His Creditors

• Decision Date: 01 April 1887
• Docket Number: 9723
• Citation: 39 La.Ann. 397,2 So. 45
• Court: Louisiana Supreme Court
• Parties: H. J. MULLAN v. HIS CREDITORS

2 So. 45

39 La.Ann. 397

H. J. MULLAN v. HIS CREDITORS

No. 9723

Supreme Court of Louisiana

April 1, 1887

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

W. S Benedict and J. O. Nixon, Jr., for the Syndic.

Nicholls & Carroll, W. H. Rogers, City Attorney.

J. Ward Gurley, Jr., and Braughn, Buck, Dinkelspiel & Hart, for the Opponents.

OPINION

BERMUDEZ C. J.

This is an appeal from a judgment amending the syndic's account.

I.

The district court allowed the experts appointed to appraise the hardware to be inventoried, the sum of $ 300. While these claim that they ought to have been allowed double that amount, it is urged that they are not entitled to more than $ 4 per day, which would reduce the allowance by about one-third.

In support of that position, reference is made to the law of 1870, (Act No. 33, p. 66), relative to appraisers in succession matters.

That law does not apply to insolvency proceedings. Had the legislature intended to extend its provisions to cases of insolvencies, it would have, and it has not, said so.

The present case does not come within the provisions of that act, which is simply in pari materia.

Besides, the appraisers, whose competency was of importance in such matter, putting an evaluation on hardware, had to be and were men of experience, specially qualified in the business, who, as a rule, are not to be renumerated at the same rate that ordinary appraisers usually are.

The services rendered may be deemed as those of experts and may be compensated on the basis of quantum meruit.

We think the allowance made by the district judge as fair and reasonable and will not increase it.

II.

The opposition of the city of New Orleans for taxes was properly maintained.

The syndic objects to their payment on several grounds, which relate to the form of the bills of taxes, to the mode of assessment, to the privilege allowed, to the prescription barring them.

These grounds will be considered seriatim.

1. The bills are in the usual form, purporting to be made from the assessment rolls. It has not been shown in what they are deficient.

2. The bills are against H. J. Mullan. It was not necessary for the city to have proved that the personal property assessed existed and had been properly listed at the time.

3. If there be a variance between the bills and the certificate of the assessors, as no doubt there is, to the extent of $ 10,000, neither the party assessed nor his creditors can complain of it, for the reason that the difference exists against the city; the bills being for that sum less than the amount at which the property appears to have been assessed.

4. The court allowed the taxes, to be paid by preference, out of the funds in the syndic's hands. Nothing shows that any part of the amount allowed is to be paid out of the proceeds of the real estate. The probability, if not the certainty, is that the taxes (if any were due) assessed on the real estate, were paid out of the proceeds of that property when title was made to the purchaser.

5th. The Constitution, Art. 177, provides that privileges on movable property shall exist without registration, for the same, except in such cases as the Legislature may prescribe.

We have been shown no legislation requiring registry to secure a lien for the payment of taxes on personal property, and we know of none. That lien therefore exists independent of any registration.

If it be contended that such privilege exists without registry only during three years and that at the expiration of that term it dies away, the answer is that, if such be the case under Article 176 of the Constitution as to taxes on real estate, it is not so as to taxes on personal property, by reason of Article 177, which dispenses from all registration as to heirs on that sort of property.

6th. The...