Tua v. Carriere

• Decision Date: 01 March 1886
• Citation: 6 S.Ct. 565,29 L.Ed. 855,117 U.S. 201
• Parties: TUA v. CARRIERE, Testamentary Executor, etc., and others. 1 Filed
• Court: U.S. Supreme Court

6 S.Ct. 565

117 U.S. 201

29 L.Ed. 855

TUA v. CARRIERE, Testamentary Executor, etc., and others.¹

Filed March 1, 1886.

The plaintiff in error brought this suit on August 18, 1884, on certain bills of exchange drawn by the firm of A. Carriere & Sons, on which he alleged there was due him the sum of $12,437. His petition stated that A. Carriere & Sons was a commercial firm, lately doing business in New Orleans, composed of Antoine Carriere, Emilie L. Carriere, and Charles J. Carriere; that Antoine Carriere had departed this life on June 4, 1884, testate, and that Olivier Carriere and Emilie L. Carriere had been appointed his executors. The petition alleged, as a ground for the issue of a writ of attachment, that the defendants had converted, or were about to convert, their property into money or evidence of debt, with intent to place it beyond the reach of their creditors, and prayed that the writ might issue against the property, goods, and effects of the firm of A. Carriere & Sons, and of Emilie L. Carriere and Charles J. Carriere; that said firm be cited, and the individual members thereof, Emilie L. and Charles J., and Antoine Carriere, through his testamentary executors, Olivier Carriere and Emilie L. Carriere, and, after due proceedings, that judgment be rendered in favor of petitioner and against A. Carriere & Sons, and change, 'with lien and privilege on the property attached.'

In accordance with the prayer of the petition, a writ of attachment was issued, and, as appears by the marshal's return, was levied on certain property and effects already in his custody on other writs of attachment. Afterwards one James M. Seixas filed his intervention and opposition in the cause, in which he averred that on July 18, 1884, the defendants, A. Carriere & Sons, made a cession of all their property to their creditors, in the civil district court of the parish of Orleans, which was accepted by the court for their creditors; that the petitioner was appointed by the court, and on August 21, 1884, was elected by the creditors and qualified as syndic of said insolvent estate, and as such had title and right of possession to the goods seized by the marshal, and that the property was not subject to attachment, and prayed that the attachment might be dissolved. Olivier Carriere, as executor of Antoine Carriere, joined in the petition and intervention of Seixas, and prayed for the dissolution of the attachment.

Emilie L. and Charles J. Carriere filed for themselves individually, and for the firm of A. Carriere & Sons, an answer, in which they averred that individually, and in behalf of A. Carriere & Sons, they had, on July 18, 1884, in the civil district court of the parish of Orleans, surrendered all their assets to their creditors, and the surrender had been accepted by the court and their creditors, and they prayed that the attachment might be dissolved. The plaintiff filed an answer to the intervention of Seixas, in which he denied that the latter was the syndic of Carriere & Sons; averred that the property attached was in the hands of the United States court, and that Seixas never had any control over the same, and had no right to disturb the possession of the United States court.

Upon the issues thus raised upon the original petition of the plaintiff and the intervention of Seixas, the case was tried by a jury, which returned a verdict for the plaintiff for $12,437.82, and that the attachment be dissolved. It appeared from a bill of exceptions taken upon the trial that evidence was given tending to show that the firm of A. Carriere & Sons was composed of Antoine Carriere, Emilie Carriere, and Charles J. Carriere; that Antoine Carriere departed this life on the fourth day of June, 1884, and Olivier Carriere was appointed his testamentary executor, and that Emilie L. and Charles J. Carriere, individually, and as surviving members of A. Carriere & Sons, took, on the eighteenth day of July, 1884, the benefit of the insolvent law of Louisiana, and filed schedules of their individual assets and liabilities and of the assets and liabilities of the firm of A. Carriere & Sons; that at the meeting of the creditors, J. M. Seixas was appointed and qualified as the syndic of Emilie L. and Charles J. Carriere, individually, and as surviving members of the firm of A. Carriere & Sons; that their creditors refused them a discharge, either individually or as surviving members of said firm; that said syndic was appointed prior to the attachment in this case, and that the attachment was levied subsequent to the refusal to discharge the said Emilie L. and Charles J. Carriere; that the attachment was levied on property already in the hands of the marshal by virtue of attachments issued prior to the eighteenth of July, 1884, and that said prior attachments were dissolved by the court on the day of the trial. Thereupon the court charged the jury that 'the cession shown in this case is made by E. L. Carriere and Chas. J. Carriere, individually and as surviving partoers of A. Carriere & Sons, and, by operation of law, carries into the surrender all their individ- ual property and all the property of the firm, and that the effect of the cession and proceedings thereunder was to stay and practically dissolve all attachments then issued against the said surrendering partners, and all property surrendered in the state courts by direct operation of state laws, and in the national court by force of section 933, Rev. St.' The plaintiff excepted to this charge. The court gave effect to the verdict of the jury by rendering judgment in favor of the plaintiff for $12,487.82, and dissolving his attachment. Thereupon the plaintiff sued out the present writ of error to bring under review that part of the judgment of the circuit court which dissolved his attachment.

Charles Louque, for plaintiff in error.

T. L. Bayne, for defendant in error.

WOODS, J.

It is not disputed that if the insolvent law of Louisiana was a valid law, and the surrender made by the surviving partners of the dissolved firm of A. Carriere & Sons was a valid surrender of the effects of the firm, the attachment of the plaintiff was rightfully dissolved; for, under the law of Louisiana, the effect of a cession of property by an insolvent person is to dissolve all attachments which have not matured into judgments. Code of Practice, 724; Hanna v. His Creditors, 12 Mart. 32; Fisher v. Vose, 3 Rob. 457; Collins v. Duffy, 7 La. Ann. 39. And by section 933 of the Revised Statutes of the United States an attachment of property upon process instituted in any court of the United States is dissolved when any contingency occurs by which, according to the law of the state where the court is held, such attachment would be dissolved upon the process instituted in the courts of said state. But the plaintiff insists that the partnership of Carriere & Sons having been dissolved on June 4, 1884, by the death of Antoine Carriere, the surviving members of the firm had no power to surrender the assets of the firm for the benefit of its creditors, and the plaintiff's attachment of said assets was therefore good.

We agree that the attempt of the surviving partners to surrender the share of their deceased partner in the assets of the firm dissolved by his death was not authorized by law, unless by consent of the heirs, or for some other reason not disclosed by this record; for, under the jurisprudence of Louisiana, upon the death of a member of a partnership, the title to his interest in the partnership effects descends to his heir, and does not vest in the survivor. The law of Louisiana on this point is stated and illustrated by the following decisions of the supreme court of that state: In the case of Simmins v. Parker, 4 Mart. (N. S.) 207, the court said: 'We think the power of the surviving partner to alienate the property belonging to' the partnership 'ceased with the dissolution; that the heirs of the deceased' partner 'became joint owners of the common property; and that the utmost effect that can be given to a transfer' by the surviving partner 'is to consider it as disposing of all the right which the vendor had in the thing sold.' In Shipman v. Hickman, 9 Rob. 149, it was held that, after the death of a member of a partnership, the partnership property was owned in common by the representatives of the deceased partner and the surviving partner, and that the interest of the representatives of the deceased could not be disposed of or alienated by the surviving partner. So in Notrebe v. McKinney, 6 Rob. 13, it was said: 'Our laws recognize no authority in a surviving partner. He cannot administer the partnership effects until regularly appointed; nor is he then surviving partner, but administrator.' In Norris v. Ogden, 11 Mart. (La.) 453, the court held that the heirs of a commercial partner have a right to participate with the survivor in the liquidation until a partition. If a partner sues for a partnership claim, the others may be made parties to secure their rights. 'In commercial partnerships,' say the court in Flower v O'Conner, 7 La. 194, 'the survivor, to receive the deceased partner's share, and hold it subject to partnership debts, must apply to the probate court, have the portion ascertained and valued, and give security.' In Shipwith v. Lea, 16 La. Ann. 247,...