State ex rel. Byrnes v. Sommerville

• Decision Date: 08 June 1903
• Docket Number: 14,860
• Citation: 110 La. 734,34 So. 757
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. BYRNES v. SOMMERVILLE, Judge

34 So. 757

110 La. 734

STATE ex rel. BYRNES v. SOMMERVILLE, Judge

No. 14,860

Supreme Court of Louisiana

June 8, 1903

Rehearing denied June 27, 1903.

Application by the state, on the relation of W. H. Byrnes, syndic, for writs of certiorari and prohibition to W. B. Sommerville judge of the civil district court for the parish of Orleans Division D. Writs granted.

McCloskey & Benedict, for relator.

Respondent judge pro se.

Henry L. Lazarus, Omer Villere, H. Gibbs Morgan, and Herman Michel for respondents.

OPINION

NICHOLLS, C.J.

Statement of the Case.

The relator herein prays, in his capacity as elected and qualified syndic of the creditors of E. Conery, Jr., that writs of prohibition and certiorari issue to the judge of Division D of the civil district court, commanding him to send up the record in the cause entitled "E. Conery, Jr., v. His Creditors," No. 49,730 of the docket of the civil district court, in order that the validity of the proceedings therein may be ascertained, and that, after due proceedings had, it be decreed that the Supreme Court is alone vested with the jurisdiction in the cause above entitled until final disposition of the appeals taken herein; that the district judge and George A. Hassinger and William Ardill, notary public, be restrained and prohibited from further proceeding in said cause until the further orders of the Supreme Court; that the order for a meeting of creditors, signed April 30, 1903, be annulled, vacated, and set aside, as improvidently and illegally issued; and that the writs prayed for be made perpetual.

This court ordered that the record referred to be sent up, and commanded the district judge to show cause why the writ of prohibition should not issue as prayed for. It further ordered that all proceedings in the case be stayed until its further orders.

The grounds of relator's application were: That he had been elected and confirmed syndic of the creditors of E. Conery, Jr. That, on the 3d of February, George A. Hassinger, claiming to be the assignee of various creditors of the insolvent, Conery, filed a rule against him, praying that he be destituted as syndic, and condemned in statutory penalties. That the rule was made absolute. He was destituted as syndic, and condemned to pay penalties exceeding $ 5,000. That he made an unsuccessful application for a new trial, and final judgment on the rule was signed April 20, 1903, destituting him.

That on the 29th of April, 1903, he appealed suspensively from said judgment, both individually and as syndic, and perfected the appeals by executing bonds according to law on the 29th of April, 1903, after which date he declared the district court was divested of jurisdiction over the subject-matter. That, none the less, George A. Hassinger presented on the 30th of April, 1903, a petition praying for the convocation of a meeting of the creditors of said Conery, insolvent, to elect a syndic in his place and stead; and said petition, notwithstanding the suspensive appeals taken and perfected by him, was favorably considered by the district judge, and he granted an order thereon calling a meeting for the purpose stated before Ardill, notary public.

That the district court was without jurisdiction to grant orders of any kind or character in said cause after the taking and perfecting of the suspensive appeals granted by the court, and the effect of the order calling a meeting of creditors was to deny to him the legal consequences flowing from the suspensive appeals. That said meeting would be held under the illegal order of the district judge pending the suspensive appeals taken by him, to his irreparable injury, unless restrained by the prohibition which he applied for.

The respondent judge answered that a writ of prohibition should not issue, for the reason that there was a judgment removing relator from the office of syndic of the creditors of E. Conery, Jr., which judgment, under the terms of article 1059 of the Code of Practice, was not suspended by the appeal taken by the relator as syndic; that he did not consider the language of that article to be exclusive in its terms with reference to court officers; that in the case of State of Louisiana ex rel. Commagere v. The Judge of the Second District Court for the Parisb of Orleans, 22 La.Ann. 116, the Court said that a dative executrix was included within the terms of article 1059, and in State ex rel. Du Buisson v. Judge, 14 La.Ann. 240, the court held that that article embraced a curator of a succession and a liquidator of a partnership; that an interdiction proceeding was nearly in all respects the same as that of succession proceedings, and the same law applied to both; that the appeal granted to the syndic was not, under the law, suspensive, and it was his clear duty to direct all necessary proceedings on the removal of Mr. Byrnes as an officer of the court.

Opinion.

The general rule as to final judgments is that they may be appealed from suspensively by complying with the conditions attached to that character of appeal. Code Prac. arts. 565-575.

Articles 580 and 1059 of the Code of Practice declare, however, that some judgments must be executed provisionally.

The first of these articles (Code Prac. art. 580) reads as follows:

"Some judgments, however, are executed provisionally although an appeal has been taken from the same within the delay prescribed and the necessary surety given. Such judgments relate

"(1) To the nomination of tutors and curators of minors, of persons absent or interdicted and of vacant successions.

"(2) To the appointment of syndics of creditors when the court orders that they shall administer provisionally."

The second article (Code Prac. art. 1059) provides that:

"When an appeal is made from a judgment appointing or removing a tutor or curator of a minor, interdicted or absent person, or of a vacant succession or absent heirs, or other administrators of successions, such appeal shall not suspend the execution of the judgment, but it shall have effect provisionally until the appeal be decided."

Section 1814 of the Revised Statutes of 1876 declares that "in case of vacancy in the office of syndic, by removal or otherwise, a meeting of the creditors to fill the vacancy shall be ordered."

Relator insists that the jurisdiction of the Supreme Court has been invaded by the action of the district court, its jurisdiction having attached as soon as he executed his bond under the order of suspensive appeal which was granted to him; that the district court was thereafter without power and authority to revoke the order for a suspensive appeal; that it never did, in fact, revoke it, but took action in execution of the judgment appealed from with the order for a suspensive appeal still standing, and after its terms had been complied with.

He further contends that the exceptions provided for by articles 580 and 1059 of the Code of Practice are specially enumerated and provided for, and the terms of the articles cannot be enlarged by analogy and construction; that the exceptional cases referred to are enumerative and exclusive, and not illustrative.

In the brief filed on behalf of the respondent judge, this court is referred not only to State ex rel. Commagere v. Judge, 22 La.Ann. 116, and State ex rel. Du Buisson v. Judge, 14 La.Ann. 240, but to State v. Judge of Second District Court, 5 La.Ann. 518, and to Succession of Menendez, 29 La.Ann. 408.

Counsel say: "It is true that under the last article no direct reference is made to the removal of syndics of insolvent estates. In principle and by analogy, as well as by the settled jurisprudence of this state, syndics, when removed by the court appointing them, cannot by appeal suspend the operation of the judgment. Their position, their duties, and their responsibilities are identical with those of a tutor, a curator, a testamentary executor, or an administrator; and the courts of the state, when construing the article cited, have read into it court officials not expressly enumerated, but whose duties and responsibilities are controlled by the same considerations that affect those particularly instanced in the article. * * * Taking the articles of the Code of Practice in the broad and intelligent sense in which they were intended, and lifting them out of the narrow and restricted meaning sought to be applied to them by the relator, the removal by a court of its trusted officer from the administration of a trust fund is not to be suspended pending an appeal. The jurisprudence of the state has wisely written into the text that class of cases coming within the principle announced by article 1059, and extended its beneficent and wise provisions to those officers of court who, recreant to their duty, are removed from the field of further temptation to do wrong, and who, until the reviewing tribunal has solemnly said that the removal was without cause, no longer stand as creditors' agents and the court's representatives."

It will be seen that article 1059 of the Code of Practice is broader in its terms than is article 580. It not only refers to the "appointment," but to the "removal," of tutors and curators of minors, interdicted or absent persons, or a vacant succession, or absent heirs, or other administrators of successions, while article 580 is limited to their appointment. The latter article, however, includes among judgments which are to be executed provisionally, although an appeal has been taken from the same within the delay prescribed, and the necessary surety given, judgments appointing "syndics of creditors," when the court orders that they shall administer provisionally, while article 1059 makes no mention whatever of "syndics of creditors."

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