text:
    No. 1450.
    The State of Louisiana vs. Joseph B. Rodrigues et als.
    There is no occasion for the postponement of the trial of a motion for a change of venue, to enable an accused to obtain the attendance of an absent witness, and cause his testimony to be reduced to writing for the purpose of having same annexed to a bill of exceptions, when the trial judge concedes the statement as made, and actually incorporates same into defendant’s bill of exceptions. Had there been a difference of opinion as to the facts such witness could swear to if present, the accused would have had the right he claimed.

      ■2. In ease the accused desires a witness to he called and sworn on the trial of such-a motion, and it appears that he is, at the time, on a jury having under consideration an important criminal case, the judge exercises proper discretion in refusing such application, the testimony being of like character as that of numerous other witnesses residing in the same ward of the parish who had been already sworn, and, therefore, only cumulative.
    3. An immaterial and trifling variance between the copy of the venire that is served on the accused and the original jury list will not vitiate the service.

      i. The allowance vel non of a continuance of a criminal cause is matter for the sound judicial discretion of the trial judge, upon the case made on the defendant’s motion, and its exercise will not be disturbed except for .cogent and manifest error.
    5. An offer of compromise of a crime, unaccepted by the prosecutor, may be proven by the Slate as an admission of guilt, or as disclosing possession of the property which is the subject of the burglary and larceny charged in the indictment.
    ‘6. The ruling of the trial judge, disallowing a new trial, will not be examined and passed upon, unless a bill of exceptions is reserved to its refusal.
    APPEAL from the Eleventh District Court, Parish of Acadia. Perrault, J.

      E. B. Dubuisson and E. P. Veazie, District Attorneys, for the State, Appellee.

      Philip S. Pugh and Chas. W. DuBoy for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

The two defendants, Theogene LeBceuf and Octave LeBceuf, were jointly indicted with J. B. Rodrigues for the crimes of burglary and larceny in one court, tried jointly, found .guilty and sentenced to seven years’ imprisonment at hard labor in the State penitentiary. Rodrigues having “turned State’s evidence,” the complaint as to him was nolle prosequied.

The two convicted defendants prosecute this appeal, relying on several bills of exceptions taken at different stages of the proceedings.

I.

The first bill of exceptions relates to the absence of a witness of the defendants whose testimony they desired to procure on the trial of their application for a change of venue. Said witness being called, and found absent, their counsel desired that a note of evidence on the evidence book be left open until the testimony of the absent witness could be procured, or the motion be assigned for a different day for that purpose, it having been ascertained that the witness’ absence was occasioned by the sickness of his wife. This application having been refused, counsel retained a bill of exceptions, and the trial judge assigned as his reason for thus ruling that the facts stated were known to the court and admitted by the State, and that they could be incorporated in a bill of exceptions when presented, and hence it was unnecessary to waste the time of the court on taking testimony upon admitted facts. He further stated that he refused to defer the trial of the motion to another day, because there were a number of witnesses summoned, and in attendance on the court, and from the same portion of the parish as the absent witness, whose testimony was of like character as that which was attributed to him, and consequently his statement would only be cumulative.

In this we can perceive nothing of which the accused have any ground of complaint.

II.

The second bill relates to the judge’s refusal of the request of the accused to have a certain other witness called to the stand to testify on the same motion, notwithstanding said witness was in the courthouse at the time. The judge assigns as his reason for refusing this request that the witness mentioned was at the time a juror on the regular panel, and was a member of a petit jury sitting on the trial of an important criminal case which had been submitted to them and. which was then undetermined, and he, consequently, deemed it improper to have him called into court and disturb the jury in their deliberations, when the testimony of this witness would have been of like character and tenor as that of numerous other witnesses who-had already been heard — his testimony being merely cumulative.

Of this ruling the accused had no ground of complaint.

III.

The third bill relates to the declination of the judge to postpone the trial of the cause, on the ground that a true and correct copy of the venire had not been served upon them, in that the name of one of the jurors on the copy served was written Aniste Dupont, whereas it appears on the original as Lavaniste Dupont; and further, that said alleged copy of the jury list as served did not have the proper certifieate; and further, because the name of George E. Brooks, one of the jury commissioners, was styled George B. Burke on the copy that was served upon them.

These objections to the service were held inadmissible by the judge and the trial was ordered to be proceeded with for the following reasons, viz.:

1. Because a certified copy of the indictment and of the uemrehad been served.

2. Because same had been properly certified.

3. Because the complaint of the name of the jury commissioner, Brooks, being incorrectly given as Burke, was a mere typographical error, and could not result injuriously to the defendants; and, in addition, the certificate of the jury commissioners did not form any part of the venire which the law required to be served on an accused; and hence this part of the objection is frivolous.

4. That the name of the juror, Lavaniste Dupont, having been written Aniste Dupont on the copy of the venire which was served on the accused is inconsequential, and could not affect the legality of service, because the name was correctly written on the original venire, and that the omission of the first syllable of the name, to-wit: “ Lav ” was the result of accident. But even if this objection were otherwise fatal to the service, no possible injury could have resulted to the accused, because this particular juror did not serve on the jury of trial — citing 11 An. 81; 2 An. 732; 25 An. 573; 39 An. 229; 35 An. 975.

In our opinion, the trial judge satisfactorily and correctly disposed of the objections urged and properly declined to postpone the trial of the cause.

IV.

The fourth bill relates to the judge’s refusal to grant the accused a continuance when the case was called for trial, because of the absence of certain of their witnesses.

For this ruling the trial judge appends tp the bill the following as his reasons, viz.:

1-. Because, in his opinion, the application was made simply for delay and not to enable the accused to obtain substantial justice.

In substantiation of his opinion he cites and relies upon the various pleas that were urged by the counsel for the accused, and which had already been overruled by the court — -and amongst them those discussed in the preceding bills of exception, and all of which he styles “frivolous pleas and objections.”

He further states, as an additional reason for his ruling, that one of the absent witnesses named was an uncle of one of the accused, who was absent at the time in an adjoining parish on a fishing excursion, and had thus absented himself a week prior to the date which defendant’s counsel had made his order for summonses to issue for their witnesses, and to the knowledge of the defendant for whose account he was to be summoned, and possibly at his suggestion.

He further states that the accused was not prejudiced by the absence of another witness named, for the reason that another witness was summoned for the purpose of proving the same state of facts as that alleged to have been within the knowledge of the absent witness ; and consequently, if this testimony was obtained it would only be cumulative and corroborative — citing Fremaux case, 39 An.

He further states that two other witnesses named were citizens and residents of another parish, and to the knowledge of the accused at the time application for a continuance was made, because said witnesses resided at no great distance from the accused; and, considering the great importance of the testimony of said witnesses to the accused, “ they were guilty of gross negligence in not ascertaining the parish wherein they resided, and did not use ordinary diligence, much less due diligence, to procure their presence ” — citing 36 An. 854; 6 An. 554; 25 An. 525; 28 An. 46; 30 An. 1176; 31 An. 179; 33 An. 1110; 34 An. 381; 36 An. 81, 153, 291; 39 An. 214; 1 Bishop, Orim. Prac., Sec. 951.

He further states that neither of the accused had prefaced their application for a continuance with an application for compulsory process against said absent witnesses for the purpose of obtaining their attendance, and consequently it was matter within the competency and discretion of the court to determine whether a proper case for continuance had been made on the defendant’s application; and, in his opinion, there was no such proper case made out — citing 14 An. 785; 28 An. 46; 33 An. 679; 37 An. 128; Whar. Orim. PL, See. 547.

The judge cited other reasons that influenced his decision in part, but those already recapitulated being, in our opinion, ample, it is unnecessary to state them.

We think it evident that the trial judge, in refusing to grant a continuance to the accused under the facts and circumstances detailed, acted within the bounds of his judicial discretion and committed no-error in so doing.

V.

The fifth bill of exceptions appertains to the judge’s declination to reject and disallow proof of a proposed compromise of the prosecution that was alleged to have been made by one of the accused, and which proof the State offered to make as an acknowledgment of the guilt of said accused — the proposed compromise having been altogether unsolicited on the part of the prosecutor, and having also-been declined by him.

The objection of the defendant’s counsel was, that this testimony, if received, would have a tendency to show the accused in question guilty of having received stolen goods, a crime not charged in the indictment, instead of showing him to be guilty of burglary and larceny, as charged against him in the indictment.

The judge assigns as his reason for overruling the defendant’s objection and admitting the testimony, that the proposed compromise was, in effect, a confession voluntarily made, and was consequently admissible against this particular accused — the jury having been instructed to the effect that it could not be considered as having any application to the other accused.

He further assigns as a reason for his ruling, that it is competent at all times in a prosecution for burglary and larceny for the State “ to show that the property stolen was found in possession of a defendant recently after the commission of the crime, whereupon the onus is (placed) upon him to satisfactorily account for the way he (became) possessed of the property, (as) in the absence of such satisfactory account, guilt is presumed.”

It is quite evident that this testimony was legally admissible on either one or both of the grounds that the trial judge assigned for its reception. If a contrary rule were established, it would be an easy matter- for persons thus accused to attempt to procure immunity from prosecution, and failing of success, to suppress the testimony the offer afforded of their guilt.

VI.

The sixth bill relates to the refusal of the trial judge to permit the introduction íd evidence of certain proofs of misconduct of certain members of the jury of trial, in the course of the disposition of defendant’s application for a new trial. This ruling is of no consequence, and it is one of several rulings of like character that is complained of, in view of the conclusions we have reached in reference to the next and last objection that is urged upon our attention.

VII.

After a tedious and protracted trial and the rendition' of a verdict of guilty, the accused made an elaborate application for a new trial, assigning various grounds; but an examination of the record discloses that no bill of exceptions was retained by the accused to its rejection and disallowance by the trial judge.

In the brief furnished by the district attorney, our attention is called to that fact, and also to the decisions of this court, to the effect that in such case the ruling of the trial judge will not be examined, notwithstanding the evidence that was adduced on the trial of such application is in the transcript, it being an indispensable prerequisite to an examination of such evidence, that a bill of exceptions should have been taken and retained to such ruling and the evidence thereto annexed, or substantially embodied in the bill.

That such has been and now is the accepted course of decision by this court is sufficiently attested by the opinions we find collated in his brief. State vs. Given, 32 An. 782; State vs. Nelson, 32 An. 846; also 32 An. 856, 1052, 857; 36 An. 310, 770; 37 An. 467; State vs. Williams, 35 An. 742; 38 An. 684; 39 An. 667.

To this list might be added quite a number of other cases, but it is deemed unnecessary.

After a careful examination and analysis of the various bills of exception and of the reasons assigned by the lower judge, we have reached the deliberate conviction that the accused has have a fair and impartial trial.

This large and voluminous record attests that the accused were rigorously prosecuted and earnestly and well defended, but it discloses no error for which they are entitled to relief at our hands.

Judgment affirmed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 1430.
    The State of Louisiana vs. Willie Foreman.
    1. Although applications for certiorari to supply deficiencies of record ordinarily come too late after submission, yet under the particular facts of this case, and considering that defendant’s assignment of error availing of these defects was itself filed only after submission, the application is allowed, on the ground tlia defendant’s laches excuses the laches of the State.
    2. Applications for change of venue on the ground of local prejudice are addressed to the sound discretion of the trial judge, and if he has not manifestly abused that discretion this court will not interfere with his ruling. When the evidence taken is contradictory and inconclusive, and when the judge bases his ruling not only on the evidence, but on his own knowledge of the facts and circumstances, it would require a very extreme case to authorize our interference.
    3. Sec. 7 of Act 44 of 1877 imposes no duty on the district judge as to requiring the jury commission to draw additional jurors as talesmen, but simply authorizes him to do so “ whenever he thinks proper,” and of course his refusal to make such order is final and not reviewable here.
    4. The other bills of exception are based on statements embodied in the bills which are denied by the trial judge, who makes his own statements which entirely destroy the exceptions and which must be accepted by this court.
    APPEAL from the Seventeenth District Conrt, Parish of Lafayette. Allen, J.

      E. B. Dubuisson, District Attorney, for the State, Appellee.

      Wm. Campbell and Jos. A. Qhargois for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

This case stood second on the docket of the court at the opening of the term and was called and submitted immediately after the court opened its first session. After said submission counsel for defendant filed an assignment of errors apparent on the face of the record, amongst which that the transcript failed to show the arraignment of the defendant and his presence during the trial. The district attorney thereupon promptly filed an application for certiorari to complete the record, alleging that the case had been submitted prematurely and in error, and that in the hurry and press of official duty the defects in the record had escaped attention, and were only discovered when defendant’s assignment of errors was filed, which was only done after the submission. The petition for certiorari was duly notified to defendant’s counsel, and the writ was issued without prejudice. Though said counsel verbally stated, in open court, in answer to a question of the court, that they did not consent to the certiorari, they have not made any formal objection or submitted any grounds of opposition thereto. In answer to the certiorari, the clerk of the District Court has sent up a certified copy of the proceedings which were omitted from the original transcript, and which completely supplies all the defects complained of. They make it clear that, in point of fact, the proceedings in the lower court were in all respects regular, and that the appearance to the contrary on the face of the original record was due simply to the omission of the clerk to include therein a copy of the minutes of the proceedings. There is no question of the right of the State to correct such omissions by timely application for certiorari and, under the circumstances of this cas§ and in consideration of the fact that the defendant’s assignment of errors was only filed after submission, we think the premature submission should not deprive the State of the right of correction. Defendant’s own laches excuses the laches of the State, and precludes him from objecting to have the validity of the proceedings, under which he was tried, determined according to the truth and fact thereof, and not according to a false simulation of non-existent irregularities appearing as the result of mere official negligence of the clerk.

The errors complained of are presented in four bills of exception, which we will consider in their order.

The first bill is reserved to a ruling of the court refusing a change of venue on the ground of prejudice in the, community which would prevent a fair trial. Evidence was taken, which is brought up as part of the bill of exceptions, and we have carefully considered it. It is contradictory and inconclusive, and the judge, in his reasons, states: “The evidence adduced and my knowledge of the facts and circumstances surrounding the case convinced me that the defendant could obtain a fair and impartial trial in the parish of Lafayette.” Applications for change of venue are addressed to the sound discretion of the trial court, and unless an abuse of such discretion be clearly shown, his decision will not be interfered with. State vs. Gonsoulin, 38 An. 489; State vs. Daniels, 31 An. 91; State vs. White, 30 An. 364.

We could not say, on the face of the evidence itself, that the judge had abused the discretion vested in him, and his conclusion, being also based on his own knowledge of the facts and circumstances, is entitled to additional weight and consideration which entirely prevent our disturbing it.

The second bill is taken to the refusal by the judge of a motion to require the jury commission to draw additional jurors as tales-men, which denial is claimed to be in violation of Sec. 7 of Act 44-of 1877. The point is meritless. A reference to the section shows; that the propriety of such requirement is subjected to the unqualified discretion of the judge and is only to be exercised “ whenever the district judge thinks proper.” The judge gives excellent reasons why he did not think it proper in this case; but if he had given none his action would not be subject to review by this court.

The third bill, which was taken to the sustaining of a challenge for cause of a juror by the State, whatever merit it might have under the statement embodied in the' bill, is absolutely shorn of all force under the statement made by the judge, and does not need further discussion.

The fourth and last bill was taken to a ruling permitting the district attorney to contradict and impeach one of defendant’s witnesses by admitting proof that said witness had made a certain statement when the witness had not denied the making of such statement, but had only said that he did not remember making it; but the judge says he had, in effect, denied making the statement, because, after saying he did not remember, he added: When I say I do not remember a thing I mean that it is not so; when I say that I do not remember what you ask, I mean that I did not say that to Clark.” This is the entire equivalent of an absolute denial, and opened the door to contradiction.

A careful scrutiny of the record reveals no ground for reversing the proceedings.

Judgment affirmed.


author: Nicholls, O. J.

text:
    No. 1435.
    H.B.Hewes et als. vs. John P. Baxter, Testamentary Executor.
    Ox Motion to Dismiss.
    Defendant is not affected by a declaration in a judgment that it is in his favor when in reality it is against him. He has the right to appeal from it to correct any errors. 8 An. 362; 2 An. 182.

      ON tub Mbjrits.
    1. Where defendants in a partition suit except that one of the co-plaintiffs who alleges himself to be the natural tutor of his minor child is not such, and on the trial of their exception show that although, under an order of court authorizing the father to qualify as tutor, he had taken an oath as such; that he had never caused, as the law requires, the abstract of inventory of the minor’s property to be recorded, which protects the minor through a mortgage; and that no letters of tutorship had ever been issued, the exception should be sustained as to this co-plaintiff, who should be dismissed from the suit, and it should be remanded to be proceeded with according to law.
    2. The fact that, on the application of a father so claiming to be tutor, a family meeting had been called by the court to consider whether the father as tutor should institute a partition suit — that it had recommended that he shoiüd do so —that its deliberations had been homologated and the suit authorized tobe brought by the judge will not cut the defendants, who are third parties, off from their rights of protection against possible sacrifice of the property and future litigation arising from proceedings of questionable validity.
    3. Defendants in partition suits having direct substantive rights of their own and interested not only in the price to be obtained, but in the title to be conveyed, by reason of their continuing obligations as co-vendors of the property to be sold, have the right to insist that proceedings of doubtful legality which have not yet reached consummation but are in process of formation should be placed securely beyond the danger point and not permitted to pass on to finality.
    PPEAL from the Nineteenth District Court, Parish of Iberia. VoorhieSy J.

      Foster & Broussard and L. T, Dulany for Plaintiffs and Appellees:
    Iso one can be compelled to hold property with another, unless the contrary has been agreed upon, and any one has aright to demand the division of a thing held in common by the action of partition. O. 0.1289; 43 An. 1118.
    All rules established in Chapter 1, Sec. 1 of C. C., except such as relate to collations, are applicable to partitions between co-owners. C. 0.1290 ; 36 An. 318.
    A partition may be sued for by any heirs, testamentary or ab intestato, by any universal legatee under a universal title. C. C. 1307.
    .The action of partition can be instituted by any co-owner holding property in common from whatever cause he may hold, and even by a possessor when his possession is lawful and proceeds from a just title; yet among co-heirs or co-proprietors it is not actual possession of the thing to be divided, but the •ownership which forms the basis of the action. C. C. 1308, 1309 and 1320.
    After the death of the mother the surviving father is of right the tutor of his minor children. C. C. 250.
    When the father of the minor becomes the natural tutor, his oath of office is a sufficient compliance with the law and the only precedent condition in order that he may exercise the function of that office. C. B- 949; 10 La. 98; 2 An. 71; 3 An. 362; 20 An. 64; 12 R. 636.
    When the petition for appointment sets forth that all the requirements of the law have been complied with, and on the allegations thus made the judge of the court competent to appoint the tutor makes the appointment, it is regular upon its face and can not be collaterally attacked. 5 An. 598; 36 *An. 533.

      Tlie appointment of a tutor made by a court of competent jurisdiction can not be regarded as absolutely null and void. 5 An. 182; 25 An. 51; 35 An. 591.
    Art. 321, C. 0., must be construed with Art. 301, O C., which last article provides for the removal of a tutor upon his neglect to record the minor’s legal mortgage. As the non-reeordafcion of a mortgage is a ground for the removal of a tutor, and as the tutor can not be removed unless he be first appointed, the non-recordation being a ground for removal precludes the idea that the order appointing him was wholly inoperative and void. 36 An. 533.
    To institute partition suit on behalf of a minor his tutor must be authorized by the judge on the recommendation of a family meeting. O. C. 1312.
    The proceedings of a family meeting recommending the suit and the authorization of the judge based on their recommendation are not void, because the petition for the family meeting was filed one day in advance of the date on which the natural tutor qualified when the order for said meeting was granted on the same day that said tutor qualified, and when said meeting was held on the same day, April 30, 1892, and the proceedings homologated two days later, to-wit: on the second day of May, 1892, and the order of the judge is granted on May 3, 1892.
    When the property is indivisible by its nature, or when It can not be conveniently divided, the judge shall order it sold. O. 0.1339, 1310.

      Philip jff. Mentz and Walter J. Burke for Defendant and Appellant:
    In a suit for partition all co-owners must be represented or the. action will fail. H. I>. 1076, No. 7;B. D 501.
    The appointment of a natural tutor before the registry of the abstract of inventory and the exhibition of a certificate,showing this,to the judge,is an absolute nullity. Acts 1869, No. 95, Sec. 2; O C. 321; Succession of Arlaud, 12 An. 518.
    The tutor is forbidden to enter upon his duties until lie shall have taken the oath. B. O. C. 331 and 335; 11 K. 503; 12 B. 636; 3 An. 562; 20 An. 61.
    lie is equally forbidden to interfere with the property of the minor until letters of tutorship have been delivered to him. B 0.0 331 and 335.
    In cases involving the alienation of the property of minors an adjudicatee will not be coerced to accept a title suggestive of future litigation. 10 An. 571; 10 An. 817.
    In such cases the adjudicatee is not confined to the mere superficial aspect of the succession record, but may inquire into the regularity and propriety of the appointment of the tutor. James vs. Meyer, 11 An. 1100
    One who has taken possession of an estate as a succession representative under orders of court provoked by himself can not change the nature and character of his possession by any act purely his own, but must invoke proper authorization of the court under whose appointment lie is acting to so change his title and possession. Succession of Townsend, 37 An. 105; 38 An. 861; Webb vs. 3Cel-ler, 39 An. 65; Succession of Frazier, 35 An. 382; li. C. C. 3116, 3511 and 3111.
    Tutorship is a personal trust. 3 An. 318; It. C. O. 315.
    The tutor, who is at the sametimeasuccession representative, does not entorupon his functions as tutor quoad the property of the estate, nor does the property pass to him as tutor until he has, under proper judicial authorization, terminated his functions as succession representative. Succession of Scarborough, 13 An. 315; same, 11 An. 293.
    An executor’s first duty is to administer the estate and to reduce it to the residuum, that belongs to the heirs and legatees; until then, ho can not, if tutor, sue for a partition. 19 An. 291; 22 An, 309; 1 B. 111.
   The opinion of the court was delivered by

Nicholls, O. J.

This action is one for the partition of certain property, movable, immovable and credits, in the parish of Iberia,, between joint owners.

The plaintiffs are Harry Hewes, Miss Rosa Mary Leiteh and J. W. Stokoe, personally and in his capacity as natural tutor of his minor son, Neil W. Stokoe, issue of his marriage with his deceased wife, Mattie J. Stokoe.

The defendant is J. P Baxter, as tutor of the minors Baxter Milmo, Walter Milmo, Gertie Milmo and Bernard Milmo, and also as executor of the estate of Bernard B. Milmo, the father of these last mentioned minors.

Plaintiffs alleged that the property, of which an itemized list and description was annexed to the petition, was owned, held and possessed by petitioners and the before[[named minor children of Bernard B. Milmo in indivisión and that they desired and demanded a partition thereof.

That the firm of Milmo, Stokoe & Co., to which the said property once belonged, had been dissolved by,the death of Bernard B. Milmo and Mrs. Mattie J. Stokoe, partners therein, and a final and full settlement of said partnership had never been made.

That Harry Hewes owned the undivided three-eighteenths of said property; Rosa Mary Leiteh (whogis a daughter of Mattie J. Stokoe by a first marriage, and a minor duly relieved from the disabilities of minority by a judgment of court), owned the undivided one-fourth of five-eighteenths of said property; that the minor Neil W. Stokoe owned the undivided one-fourth of five-eighteenths; that J. W. Stokoe personally owned the undivided half of five-eighteenths,, and that the four minors, represented ¿by their tutor, J. P. Baxter, owned the undivided ten-eighteenths, which they, the only forced heirs, inherited from their father.

That Miss Rosa Mary Leiteh and Neil Stokoe acquired their interest by inheritance from their [mother, Mattie J. Stokoe, which they were seized and in possession of as sole and forced heirs; that there were no debts, and Rosa Mary Leiteh accepted unconditionally the succession.

That J. W. Stokoe, as tutor of the minor, Neil W. Stokoe, had caused a family meeting to be convened on behalf of said minor,, and that said family meeting, whose proceedings had been homologated, recommended that on behalf of said minor his tutor institute proceedings for a partition.

That all of said property was of such a nature and kind that it was detrimental to the owners to hold the same in indivisión, and that a partition thereof was necessary and that it should be made by licitation.

Petitioners prayed for citation upon Baxter, as tutor and testamentary executor; that there be judgment in their favor recognizing them as co-owners of said property and ordering and decreeing the sale thereof for the purpose of effecting a partition among all the co-owners; that on the part of the majors said property be sold for cash, and so far as the interest of each and all the minors that it be sold upon such terms and conditions as might be recommended by a family meeting convened in their behalf; that experts be appointed to examine into the nature and kind of said property and to report to the court whether or not it was susceptible of division in kind; that an estimative inventory be made of said property; that the judgment ordering the sale also order and decree that the final partition be referred to a notary in order that a partition be made between all the co-owners and according to law; that Stokoe, as tutor of his minor child, be authorized to stand in judgment, as recommended by the family meeting.

On the 3d of May, 1892, the district judge signed an order by which he authorized J. W. Stokoe, as tutor, to prosecute the proceedings and to stand in judgment as the representative of the minor in accordance with the recommendation of the family meeting held in that behalf, appointed experts to examine and report, under oath, the nature and condition of the property sought to be partitioned, and directed the taking of an estimative inventory of the same.

The defendant Baxter, as tutor, filed an exception to the effect that J. W. Stokoe has not and never had been the tutor of Neil W. Stokoe; that the abstract of inventory showing the amount and value of the property of said minor had never been recorded; that no appointment of said J. W. Stokoe as tutor had been made, or if made, that the appointment was absolutely null, void and without effect; that no “ letters of tutorship” had ever issued to the said Stokoe from the court, and that he was without appointment or authority of any kind to represent the minor; that at the time he applied for the convocation of a family meeting to authorize him to bring the suit in behalf of the minor , he had not taken the oath required by law, and that he was without authority to petition for the said meeting, and that the holding of the same was without effect of any kind, and that all the proceedings relative thereto were null and void, and that all the parties alleged by the plaintiff to be co-owners of the property sought to be partitioned were not represented. For these reasons he prayed that the suit be dismissed. This exception having been overruled, defendants filed an answer in which, after pleading the general issue, it was admitted that the minor children of Bernard B. Milmo were owners of ten-eighteenths of the property described in plaintiff’s petition,.but specially denied that J. W. Stokoe had any right or title to any part of the property or that Rosa Mary Leiteh or Neil W. Stokoe had ever acquired title to any part of the same. The answer declared that the property belonged solely to the estate of Mrs. Stokoe, deceased; that J. W. Stokoe was the executor of the last will and testament of said deceased, and that the said estate was in her possession solely and exclusively as such executor; that legatees were named in the will; that J. W. Stokoe had never filed any account of his gestión; that he had never distributed the property as required by the last will, and that neither the legatees under said will nor the heirs of the said deceased had acquired title to or possession of said property, and that none of them were owners of any part of the property of said estate; that no orders had ever been obtained by said executor, nor had any petitions asking for such orders ever been presented to any court asking for the distribution of the property or assets of said estate, or for the payment or delivery of the legacies named in the last will and testament of said deceased; that the entire property of said estate still remained as it was at the moment of the probate of the said last will and testament; that title to the property was solely in the said executor in his said capacity, in which capacity he had not the right to sue for a partition. Defendants prayed that the demand be dismissed and for trial by jury.

The ease having gone to trial the jury returned a verdict as follows:

“ Verdict for defendant. Inasmuch as the property can not be divided in kind, it is our opinion that the sale of said property at public sale in parts would work to better advantage to all parties concerned in this suit.” (Signed) John Broussard, foreman.

The court on the verdict as so found rendered the following judgment:

“ The above numbered and entitled cause having been duly fixed for trial by jury, and a jury having been duly empaneled and the said cause having been duly taken up and tried before said jury, and the evidence and the law being in favor of the defendants and against the plaintiff, and the verdict of the jury being in the following words, to-wit:
“Verdict for defendant: Inasmuch as the property can not be-divided in kind, it is our opinion that the sale of said property at public sale in parts would work to better advantage to all parties, concerned in this suit.” John Broussard, foreman.
“ It is therefore ordered, adjudged and decreed that the property described in plaintiff’s petition be sold at public auction by the sheriff of this parish, to effect a partition between them, and that the same be sold in parts, to-wit:
“ The land between Main street, in Jeanerette, La., and the Bayou Teche, and the buildings, improvements and machinery thereon, be sold together, and that the steamboat Rose M. Stokoe, the pull-boat, logs, lumber and open accounts, and the lot of land in said town, next to the railroad, be sold separately. It is further ordered, adjudged and decreed that the plaintiff pay the costs of this suit. It is further ordered, adjudged and decreed that a family meeting, composed of the nearest relatives of the minors, co-owners of the property, and parties to this suit, be convened before Léonce B. Delahoussaye, notary public, in and for the parish of Iberia, for the purpose of fixing the terms of said sale in so far as said minors are-concerned and to safeguard their interests.”

From this judgment the defendants appealed.

Plaintiffs filed in the Supreme Court a motion to dismiss the appeal, on the grounds-—

1. “That the judgment being in favor of appellant in toto and' ordering just what he asked and wished, so far as the testimony and judgment shows; he has no right to an appeal.

2. “The testimony, evidence and judgment of the lower court and verdict of the jury having granted him what he wished and requested, he, in case of partition under such circumstances, is not entitled to-an appeal, and an appeal from a judgment in his favor will be dismissed.

3. Where there is a judgment in favor of the appellant, granting him the mode and manner of doing what he asks, the appeal taken by him will be dismissed.”

The record fails to bear the appellees out in their statements in the motion to dismiss. Defendants have constantly resisted plaintiffs’ demand and sought to have it dismissed. At no time have they abandoned their opposition. • The fact that the judge in rendering judgment declared that the decree was rendered by reason of the law and the evidence, and the verdict of the jury being in favor of defendants and against the plaintiffs, amounts to nothing in view of the decree itself, which was adverse to the defendants on issues raised and presented by them.

In the case of the Police Jury vs. Succession of McDonogh, 8 An. 362, this court said:

“A party may appeal from a judgment rendered in his favor, and at his own instance, to correct any errors in it.”

As a matter of course a mere’ declaration by either judge or jury, or by both, that a judgment is one in favor of a defendant when in reality it is one against him, can have no effect as against the facts disclosed by the record. There is no merit in the motion to dismiss. The appeal is sustained. 2 An. 182; 8 An. 362.

The defendants and appellants contend most earnestly that the District Court should have sustained the first exception filed by them, which was to the effect that J. W. Stokoe was not authorized to represent his minor child, for the reason that the abstract of inventory showing the amount and value of the property of the minor had never been recorded, and that if any appointment of said Stokoe as tutor of the said ’ minor had been made (which was ex - pressly denied) said appointment was absolutely null, void and without effect of any kind, and that no letters of tutorship’ having issued from the District Court he should be held to be without appointment or authority of any kind to represent the minor. ’ ’

The record shows that on che 29fch of April, 1892, J. W. Stokoe filed in the District Court for Iberia a petition in which he alleged that his wife, Mattie J. Stokoe, had died in that parish; that her succession had been opened, and an estimative inventory of her said estate had been made and duly filed and recorded in Iberia parish; that his said wife had died leaving one minor, the issue of her marriage with him, and that said child had inherited part of her estate, and was the owner thereof; that said minor was named Neil Stokoe, and that he (petitioner) was the tutor by nature and desired to qualify as such, as no tutor had been appointed to represent the minor, and he therefore prayed to be allowed to qualify as natural tutor. We find, on the same day, an order of the district clerk that, “considering the petition, it is ordered that J. W. Stokoe be allowed to qualify as natural tutor to his minor child, Neil Stokoe, issue of his marriage with Mattie J. Stokoe, and that an abstract of the inventory of the property of said minor, as shown by the estimative inventory made on the- day of--, 18 — , of the estate of J. W. Stokoe (Mattie J. Stokoe ?), be duly recorded upon the mortgage books of Iberia parish.”

We find that on April 30, 1892, J. W. Stokoe took the oath of office as natural tutor to his minor child, but we find no further order-relative to his appointment or confirmation, and no evidence was adduced to show that “ letters of tutorship” had ever been issued to him, although that fact was expressly put at issue.

The record further shows that on the twenty-fifth day of April, 1891, an inventory, with appraisement, was made of the property of the succession of Mattie J. Stokoe and filed in the office of the clerk of the District Court on the same day, but that up to the date of the rendition of the judgment in this case in the District Court neither this inventory nor any abstract thereof had been recorded in the mortgage books of the office of the recorder of the parish of Iberia.

Defendants call our attention to Articles 321 and 335 of the Civil Code, the first of which declares that “ in the several cases in which the tutor is not required to give bond it shall be the duty of the clerk of the District Court of the parish in which the appointment is to be made to furnish a certificate of the amount of the minor’s property, according to the inventory on file in his office. This certificate must be recorded in the mortgage book of the parish in which the tutor resides, and a certificate to that effect, signed by the recorder of mortgages, must be presented to the judge before he can make the appointment or authorize ‘ letters of tutorship ’ to be issued,” and the second that “ the letters of tutorship shall not be delivered to the tutor until he shall have complied with the law as herein required.

“ Until they shall have been delivered to him' he shall not interfere with the administration of the property of the minor, except for the purpose of preserving it in cases which admit of no delay. The tutor is not recognized, confirmed or appointed, nor is he permitted to act as tutor, until the judge renders and signs a decree authorizing letters of tutorship to be issued.” The provisions of these two cited articles are combined in Art. 3351 of the Oivil Code.

Defendants insist that these articles are mandatory, as conditions precedent to an appointment as or t o action as a tutor, and that as resulting from that fact they operate a prohibition against such action, which if taken is null, void and of no effect. They cite several decisions in support of their contention, particularly the succession of Arlaud, 42 An. 548.

Plaintiffs on the other hand, rely upon that of Stackhouse vs. Zuntz, 36 An. 530, and the conclusion reached in that case by this court, construing the articles just copied in connection with Art. 304 of the code, which provides among other causes . for the ‘ removal ” of a natural tutor, that of his neglect to have had this inventory made and recorded at the time and within the period prescribed by law, which time (as the court then construed it) was that required by the two articles first quoted.

After mature deliberation upon the questions submitted to us for adjudication in this ease, we have reached the conclusion that, under the circumstances and conditions in which they were raised, the district judge on the exception filed by the defendant as to the right of J. W. Stokoe to represent the minor, Neil Stokoe, as his tutor or to stand in judgment for him therein, should have sustained the same to the extent of dismissing the said J. W. Stokoe (as representing Neil Stokoe as tutor) as a co-plaintiff from these proceedings.

Defendants as joint owners of the property sought to be partitioned have direct substantive rights of their own entitling them to insist by reason of the same upon having the proceedings so conducted as to cast no cloud upon them which would affect the price to be obtained, or throw a doubt upon the title to be conveyed under them. Their continuing obligations as co-vendors of the property to be sold authorize them reasonably to demand at the hands of the court that proceeding of doubtful validity which have not yet reached their consummation, but are in process of formation, should not be permitted to pass on to finality, but should be forced to be placed securely beyond the danger point.

Without expressing any opinion as to whether defendant’s contention, that an appointment by a court]of a person as tutor prior to the recording required by law of the abstract of the inventory of the minor’s property is an absolute nullity, be well founded or not, or what would be the effect under differing circumstances of acts done by a person acting as tutor under such a state of facts, it is sufficient for us to say that the defendants have brought to our notice a condition of things such as to certainly entitle them to protection. Doubtful questions should be resolved in their favor. Plaintiffs in partition have no right to jeopardize the interests of their co-owners by taking out uncertain proceedings. The failure of the father to have had the abstract of inventory recorded, and after such recording to have had “letters of tutorship” issued to him where such important interests of his child and others were at stake, was inexcusable, and is too likely to be attended by dangerous results not to be checked. Eor the reasons herein assigned, it is ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and it is further ordered and decreed that this cause be remanded to the court below and be therein reinstated, without prejudice to the rights of any one, either plaintiff or defendant, and with leave granted to all parties to so reform their pleadings and proceedings as to conform to the law and the views herein expressed; the costs of appeal to be taxed against the appellees, and those of the lower court to await final action therein.

Breaux, J., takes no part.


author: Watkins, J.

text:
    No. 1434.
    Harry B. Hewes et al. vs. John P. Baxter, Tutor and Executor.
    Same as that in suit of same title, No. —■.
    APPEAL from the Nineteenth District Oourt, Parish of St. Martin. Voorhies, J.

      T. D. Foster, B. F. Broussard and P. H. Mente for Plaintiffs and Appellees.

      W. J. Burke for Defendant and Appellant.
   On Motion to Dismiss Appeal,

The opinion of the court was delivered by

Watkins, J.

The grounds assigned for the dismissal of the appeal are that there is no legal bond of appeal furnished in compliance with the order of the judge granting the appeal. Further because the order of court granting the said appeal fixed the amount of the appeal bond at five thousand dolíais. That subsequently a rule was taken on behalf of the defendant and appellant, commanding plaintiffs and appellees to show cause at the judge’s chambers why said bond should not be reduced in amount, but same was dismissed, and thereafter .the judge made an ex parte order reducing the amount of said bond to $500, and without notice to the plaintiffs and appellees —and that such order was illegal and void.

The additional ground is taken that no appeal lies in a partition suit, unless the ownership of some of the joint heirs or co-owners is matter of dispute, and the averment is made that although the defendant in his answer denied that some of the plaintiffs are owners in common, yet in his testimony he admitted the joint ownership of all. The o rder of appeal is in the alternative granting the defendant a devolutive appeal, fixing the bond for same at $250, anda suspensive appeal, fixing the bond therefor at $5000.

After the granting of the order the defendant applied to the district judge in chambers and procured an order reducing the amount of the suspensive appeal bond to $500 — not, however, disturbing the amount of ihe devolutive bond. In pursuance of said orders the defendant executed a bond for $500, and instead of furnishing security under an order of court, he substituted that sum of money and deposited same with the clerk of court.

Consequently, if it be conceded that the order reducing the amount of the suspensive appeal bond from $5000 to $500 was irregular, yet the bond for $500 is quite sufficient to respond as a devolutive appeal bond. Glover vs. Taylor, 38 An. 634.

On the other branch of the case it is only necessary for us to observe that it is elementary that we can not go into an investigation of a question of evidence that was adduced on the trial in order to determine the dismissibility of an appeal.

Motion to dismiss denied.

On the Merits.

This is a suit for the partition of a large quantity of land situated in the parish of St. Martin, which was formerly the property of a a firm or copartnership styled Milmo, Stokoe & Oo., now dissolved by the decease of two of its members, Mrs. M. J. Stokoe and Bernard Milmo. It is instituted by Harry B- Hewes, the only surviving member of that partnership, joined by John W. Stokoe, surviving husband and partner in community of said Mrs. Mattie J. Stokoe, who appears in his own right and as the natural tutor of N. W. Stokoe, issue of their marriage; and also by M. Bose Leitch, an emancipated minor, issue of the same marriage — the latter being a forced heir and universal legatee of Mrs. Stokoe, deceased.

The action is directed against John B. Baxter as dative tutor of the minor children and forced heirs of Bernard B. Milmo, deceased partner of said copartnership, as co-owner with said plaintiffs of said common or partnership property.

The proportionate shares of each of said partners or co-owners is as follows, viz.:

Bernard B. Milmo, tutor, ten-eighteenths.

Mattie J. Stokoe, represented by her husband and by her two children, five-eighteenths.

Henry Hewes, three-eighteenths.

The allegation is made by the plaintiffs, and not seriously controverted by the defendant, that the lands in question can not be conveniently divided in kind, and that the partition should be made by licitation.

In limine, the defendant tendered the following peremptory exception, founded on law, namely:

That John W. Stokoe, who is alleged to be natural tutor of the minor Neil W. Stokoe, is not and never has been the tutor of said minor; that an abstract of the inventory of said minor’s property, showing the amount and value thereof, has never been inscribed in the book of mortgages, as the law requires; that if any appointment of said Stokoe as tutor of said minor has been made, same is absolutely null and void and without effect of any kind; that no letters of tutorship have issued to him as tutor, and that he is without appointment as such, or authority of any kind to represent the minor as such, and more particularly without authority to represent said minor in this suit or to stand in judgment therein; hence, the said minor is without a representative in this suit, and consequently same should be dismissed.

The issues raised herein are precisely similar to those presented and this day decided in suit of same title and bearing docket No. 1435, appealed from the parish of Iberia, and wherein the aforesaid exception was made and sustained for reasons assigned therein, and which are reiterated and adopted as our reasons for judgment in this case.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and it is further ordered and decreed that this cause be remanded to the court below and therein reinstated, without prejudice to the rights of any one of the parties, either plaintiff or defendant, and with leave granted to all parties to so reform and perfect their pleadings and proceedings as to conform to the law and the views herein expressed, and as expressed in the case No. 1435 herein specified, the costs of appeal to be taxed against the appellee, and those of the lower court to await final action therein.

Mr. Justice Breaux recuses himself and takes no part in this decision.


author: MoEnery, J.

text:
    No. 1432.
    James P. Welch, Curator ad hoc, vs. John P. Baxter, Tutor.
    In directing proceedings against the tutor for his removal from the tutorship, the under-tutor is the proper person to commence the action. The judge, on information furnished him as to the necessity of the tutor’s removal, can only appoint a curator ad hoc when there is no under-tutor.
    When it is brought to the judge’s attention that the funds of the minor have been sent beyond the State, he should at once direct the under-tutor to take necessary steps to protect the interest of the minor.
    APPEAL from the Nineteenth District Court, Parish of Iberia. Voorhies, J.

      Foster & Broussard and L. T. Dulany for Plaintiff and Appellant.

      Philip jET. Mentz and Walter J. Burke for Defendant and Appellee.
   The opinion of the court was delivered by

MoEnery, J.

Bernard P. Milmo died in 1891, in the parish of Iberia. He left several minor children. John P. Baxter, under his will, was appointed tutor. The Rev. Father Bordy was appointed under-tutor. The plaintiff, James P. Welch, the uncle of the minors, filed a petition in the District Oourt, setting forth many reasons why the tutor should be removed, alleging that the under tutor, although requested to do so by him, refused to bring a suit for the removal of the tutor, and prayed that a curator ad hoc be appointed to bring the suit for the removal of the tutor. The plaintiff was appointed curator ad hoc and brought this suit.

The defendant tutor filed an exception to the action, alleging, first, “ that there is an under-tutor to the minors, named in plaintiff’s petition, and so long as there is such an under-tutor, he is the only person authorized under the law to bring such an action against the defendant. Second, that the under-tutor has never been ordered or directed in any manner by this honorable court to bring this suit. Third, that no one, not even a private person, has ever requested the said under-tutor to bring this suit and that the said under-tutor has never declined to bring this suit. Fourth, that none of the facts set out in the petition of the plaintiff, asking for his appointment as curator ad hoc for authority to bring this suit, have ever been brought to the knowledge of the under-tutor.”

The under-tutor intervened, alleging what is contained in the above exception, averring also that he is at all times ready and willing to perform his duties as under-tutor to the said minors and to obey all orders that the District Court may see fit to issue to him in the proper discharge of his duties; that he has been illegally displaced by the appointment of a curator ad hoc without a hearing, and on an ex parte order of the court. He denies the averments in the petition of plaintiff and prays for a dismissal of the suit.

Plaintiff excepted to the petition of intervention on the ground that the intervenor had no interest in the suit.

•Testimony was had on the exception, and it appears that the plaintiff spoke to the under-tutor about the facts alleged in his petition, but the under-tutor was satisfied with the tutor’s administration and affirmed that the funds of the minors were safely and securely deposited. No order of court had been rendered requiring him to proceed against the tutor.

The exception of defendant was maintained and the suit dismissed. The plaintiff appealed.

The only question presented is whether or not the judge had the authority to appoint a curator ad hoc to proceed against the tutor, when there was an under-tutor duly appointed.

The under-tutor must in all cases act for the minor, when the tutor’s and the minor’s interest conflict. C. C., Art. 275.

Therefore, in the old code it was provided, when the judge was made acquainted with facts which required the intervention of the under-tutor, that he should direct him, or if there should not be an under-tutor, a curator ad hoc, or curator ad lites to proceed contradictorily with the tutor. The curator ad hoc could only be appointed in the absence of an under-tutor, or subrogated tutor, as he was designated in the old code.

In 1830 the Legislature abolished the curator ad bona and ad litem and in all cases placed the estates of minors under tutors and under - tutors until the minors should attain majority or be emancipated.

The curator ad hoc was then the only person under our system who could be appointed to represent a minor unrepresented by an under-tutor. In McGuire, Curator, vs. Ross, Tutrix, 12 L. 577, this court said: “The Code of Practice provides that the judge when made acquainted with the facts, rendering it proper to remove a tutor, if he thinks there is probable cause for removal, shall direct the under tutor to prosecute his removal; or if the minor has no under-tutor, he shall then appoint a curator ad hoc to represent him.”

This case was decided after the abolishment of the curators ad bona and ad litem. The counsel for plaintiff contend with force and ability that the opinion in this case was predicated upon the article of the code which would read, after the passage of said act of 1830, that the judge could only appoint a curator ad hoc when there was no under-tutor, and that in the revision of the code in 1870 it contains no such mandatory provision as was contained in the code prior to its revision.

The article of the code as it now reads as revised is as follows: The judge when made acquainted with such fact, if he thinks there is probable cause for removal, shall direct the under-tutor of the minor, or he shall appoint a curator ad hoc to commence the action.” The only change in the article, and that under which the decree in case of McGuire, Curator, vs. Ross, Tutrix, was rendered, is, the omission of the words: “if said minor has no subrogated tutor.” This omission, we think, can make no difference in the interpretation of the article — as they were in the original article mere surplusage. In both articles it is provided that he shall direct the under-tutor to bring the action in the first instance. In the article in the Revised Oode of Practice it is evident that the judge is not at liberty to ignore the appointment of the under-tutor, since be can only be removed by a direct action in the same manner in which the tutor is removed. Oode Practice, Art. 1017; see Hawkins, 35 An. 591.

The facts alleged in the petition of plaintiff are sufficient to authorize the judge to direct an action against the tutor, to the extent at least of compelling him to file an account and to show what disposition has been made of the minors’ property.

It appears from the record that a part of the minors’ estate is represented by promissory notes drawing interest, and that they are on, from what the under-tutor says, safe deposit in the State of Wisconsin.

The tutor has no right to send- the minors’ property beyond the State, except for the collection of money due on obligations. He has no right or authority to invest these funds beyond the limits of the State, and out of the jurisdiction of the court having jurisdiction of the tutorship. This fact alone,stated in the testimony of the under-tutor, requires prompt investigation. The under-tutor should be directed at once to institute against the tutor the proper proceedings to insure the safety of the minors’ estate.

Judgment affirmed.


text:
    No. 1436.
    J. P. Baxter, Testamentary Executor, vs. H. B. Hewes et al. F. W. Bauman, Liquidator, Intervenor.
    1. In fixing the quantum me'i'uit of the services of a liquidator of a partnership appointed by the court, the judgment of the lower court is entitled to great weight, and will not be disturbed unless manifestly erroneous.
    2. The fees of attorneys employed to file and homologate the liquidator’s account are a proper charge against the estate, and do not lose that character because they are partially devoted to maintaining the liquidator’s charge for his services, which forms a proper element of his accounting.
    APPEAL from the Nineteenth District Court, Parish of Iberia. Voorhies, J. ■ ■

      Philip If. Mentz and Walter J. Burke for Plaintiff and Appellee.

      Weeks & Weeks contra.

   The opinion of the court was delivered by

Fenner, J.

Intervenor, F. W. Bauman, was appointed liquidator of the partnership of Milmo, Stokoe &Oo., a firm engaged in the lumber and lumber-milling business, with powers limited to the care and custody of the partnership property and to the collection of its debts. The property was valuable, consisting of saw-mill, planing and shingle mills, lumber on the yard, swamp land, logs cut and ready for rafting, a steamboat, mules, carts, etc., besides accounts and bills receivable. The liquidator furnished a bond of $10,000. He served for about one year. During that time he collected about $7000 of the debts, and also about $4000 for lumber sold by him with the consent of the parties interested. His other duties were confined to the care and superintendence of the property, the operation of the business being ‘entirely suspended. His duties were responsible and no doubt occupied most of his time and attention. He filed an account which was accepted and approved without opposition, except as to two items, viz.: (1) His compensation as liquidator; (2) his charge for fees of his attorneys who filed his account.

As to his own compensation witnesses were examined by both parties who gave various estimates as to the quantum meruit of his services, varying from $1200 or $1500 to $3500, which was claimed. The judge a quo fixed the amount at $2000, from which the liquidator appeals. We have read and weighed the testimony and find in it nothing which would justify us in disturbing the judge’s finding, which, on such a matter, is entitled to great weight and is not to be interfered with except for manifest error.

We think, however, the judge erred in rejecting entirely the claim for attorneys’ fees.

It appears that all the legal advice and services required by the liquidator up to the moment of filing his account had been rendered without charge by the counsel of plaintiff in the suit. At that time the plaintiff’s counsel, considering that the liquidator’s account must include his fees for services and would thus involve a conflict of interesb between the liquidator and their client, advised the liquidator “ to procure the services of an attorney to represent him in filing his account and incidentally in collecting his fees as liquidator.” Accordingly the liquidator employed Messrs. Weeks & Weeks for that purpose. The account was already made up, and Messrs. Weeks & Weeks had nothing to do but to file it and to claim in his behalf the fees for his own and for his attorney’s services. There was no litigation over the account except as to these two items.

The judge, in his opinion, admits that the liquidator had the right “ to employ counsel to assist him in filing his account and in having the same homologated” and that “the fees of attorneys incurred for such purpose constitute a legal charge against the assets of the estate;” but he adds, “ when the liquidator employs counsel merely to protect his own individual interest, as in this case, the court is of opinion that it is neither just nor equitable that the estate should be made responsible.”

Now in this case it is admitted that these attorneys were employed to file the account and to have it homologated, and that they actually performed these services. This alone is sufficient to establish his right to claim a fair fee for his attorneys. The fees of the liquidator form a necessary element of his account, and we think the professional services rendered in defending this item of the account were fairly chargeable to the estate, especially in a case like the present where the trial had and evidence taken were essential to furnish the judge a basis for intelligent action in fixing the amount.

Considering, however, that the attorneys had no labor in framing the account and encountered no opposition except as to these particular items and the brevity of the trial thereon, we think a fee of $100 will be a sufficient allowance.

It is therefore adjudged and decreed that the judgment appealed from be amended by reversing that portion thereof which rejects the demand for attorneys’ fees, and by now allowing and fixing the same at the sum of $100, and that, as thus amended, the judgment be now affirmed, appellees to pay costs of this appeal.


author: Breaux, J.

text:
    No. 1445.
    Clinton B. Andrus vs. His Creditors.
    The verdict of the jury in insolvency proceedings characterized the cession made as fraudulent.

      The property o£ the insolvent did not thereby again become liable to seizure under execution or by attachment of individual creditors.
    The interest of the mass of the creditors is not dependent upon the opinion of the majority in number and amount of the creditors, not legally expressed. The restraining order remains. Other proceedings must be taken and meeting of creditors held.
    The surrender is made to the creditors, who have the right to sell the property for their benefit; that right can not be defeated by the fraudulent acts of the debtor.
    APPEAL from the Eleventh District Court, Parish of St. Landry. North Cullom, J.

      Thos. H. Lewis for Opponents and Appellants.

      Kenneth Baillio contra.

   The opinion of the court was delivered by

Breaux, J.

A number of the creditors of the insolvent allege that he has made a fraudulent surrender of his property; has given undue preference to certain creditors to influence them to vote for the acceptance of his cession and for his discharge.

That after having settled with these favored creditors, at a given percentage on the dollar, they gave him their blank powers of attorney, which he caused to be filled in the name of persons as agents whom he knew would vote as he desired.

In their opposition the creditors who are opponents charge that he withheld from his cession, in addition to the cash, a stock of goods, wares and merchandise worth at least $1500, which in anticipation of his cession he caused to be moved from his store to another place in charge of another, to be disposed of by him as if for the account of the person interposed by the insolvent.

That he ordered bills of merchandise a few days before his surrender, upon receiving which he turned the goods over to the person selected by him, who sold them for his account surreptitiously.

That persons who were not his creditors voted, and that the illegal and fraudulent votes deducted, there did not remain the requisite number to accept the cession or grant a discharge.

The opponents allege .that all of the insolvency proceedings of C B. Andrus are utterly null and void because of said acts, and they pray that the order of court accepting the cession and all the insolvency proceedings, including the meeting of creditors and the acceptance of the cession, be annulled and avoided.

The insolvent answering denies that he made a fraudulent surrender ; that he gave an undue preference to any of his creditors; that he offered any inducement to any of them to influence their votes on his surrender and discharge; that he has any interest or control over the store kept by L. V. Major, or that he turned over goods to him to be sold for his account surreptitiously.

He avers that he acted in good faith in all matters of his surrender.

The ease was tried by jury, who found the verdict:

“We, the jury, find O. B. Andrus guilty of fraud in his cession.”

The judgment upon this verdict reads:

“It is by reason thereof, and the law and the evidence favoring same, now ordered, adjudged and decreed that the cession made by C. B. Andrus to his creditors be and the same is hereby declared fraudulent, and it is further ordered that the prayer of plaintiff to have said cession annulled in toto and set aside as not binding on said Andrus be and the same is refused, reserving to said plaintiff Ms right to try the right to such a decree in a proceeding in which all the creditors to be affected by it shall be made parties.”

From the judgment the opponents have appealed, and urge before this court the rescinding of the provisional order of the judge accepting the cession and the staying of the proceedings against the property of Andrus, and that all proceedings be quashed and annulled.

We will not review with particularity the evidence upon which the jury acted, for it is manifest their verdict is correct.

We do not understand that any attempt is made to reverse the finding of the jury. If there was any attempt made in that direction it would not be of any avail, for the testimony sustains the verdict as to the fraudulent character of the cession.

The acceptance of the cession by the creditors not being established by the affirmative vote of a numerical majority of the creditors having the right to vote, must fall; less than the required number of votes having been east in favor of accepting the cession.

By this failure to accept the cession the effect of the restraining order does not cease, and the property of the insolvent does not return to the possession of the insolvent.

If such were the results, the setting aside of a cession on the ground of fraud would have the effect of reinstating the insolvent debtor in the ownership of his property. He would gather benefits by his own fraud and misconduct.

The rights of creditors to have the property sold for their benefits would be lost to them, though a cession is a relinquishment by the debtor of his property to his creditors.

The duties of the provisional syndic as defined in the statutes are to keep as a deposit all the goods and other effects of the insolvent debtor which shall be delivered to him.

The restraining order preceding his appointment stays all the proceedings against the insolvent, who shall deliver all his goods, titles and claims mentioned in his schedule.

That order still stands; also the appointment of the provisional syndic must have effect until revoked.

In a recent decision we held:

“The plaintiffs are mistaken in the view of the situation. The very motive and object of bringing che creditors together were, through the vote taken at the meeting, to bring about a result binding on each and all, and in the supposed interest of the mass of the creditors. As said in Morgan vs. Nye, 14 An. 30, the vote of a single creditor is not a mere offer to make a new contract between the creditor and debtor, but is a quasi judicial act, by which the rights of other creditors are to be affected. In Anderson vs. Duson, 35 An. 917, this court of a respite said: The effect of the judgment is to create a judicial contract between the debtor and all his creditors, by which the debtor is allowed a delay for the payment of the sums which he owes them.’
“ As the debtor’s property is the common pledge of his creditors, and the contract is binding on all the creditors, the law did not and could not contemplate to confer on any one creditor the right of annulling the contract without judicial process on the ground of its alleged violation by the debtor and to proceed to apply the property thus restored to the possession of the debtor to the satisfaction of his individual debt.” Vicksburg Liquor and Tobacco Co. vs. Jeffries, 45 An.

We have quoted freely from this decision sustaining the rights of creditors of the insolvent and laying down as correct the principle that the same rules which govern ordinary contracts should be applied and that the creditors should be afforded an opportunity to be heard and their interests consulted before any change be made.

If the rights of the creditors could not be ignored in the case from which we have quoted, they require in the case at bar that the preliminary proceedings of insolvency shall not operate to their prejudice.

In case of accusation of fraud after having received the insolvent’s answer the court shall order a jury to be summoned for the purpose of deciding the accusation. R. S. 1802.

If fraud be found by the jury it does not per se result in rejecting the order of the judge accepting the surrender.

The agency of the court is to be applied in preventing or restrain- „ ing the fraud and should not abandon on account of the fraudulent acts of the debtor all attempts at protecting the rights of creditors. The insolvent debtor is deprived of the benefit of the law passed in favor of insolvent debtors.

He is barred from discharge and other protection offered to the debtor who makes a proper cession.

The statutory denunciation of fraud is limited in its effect to the debtor. The creditor is not exposed to loss or prejudice on the discovery of fraud.

The surrender is a statutory execution. Instead of exposing the insolvent debtor to the seizure and sale of his property at the instance of individual creditors, and thereby disposing of all his property and rights among contending creditors, the statute provides an execution; that the property shall be sold and the insolvent debtor’s estate settled en concurso.

His fraudulent acts, after the cession, affect him only. The insolvency proceedings remain for the benefit of the creditors.

“ The surrender of the property is a relinquishment that a debtor makes of all his property to his creditors.” C. O. 2170.

This surrender is not subject to defeat by the fraud of the insolvent.

The orders which have been issued remain and are not subject to collateral attacks.

They continue in their effect until rescinded contradictorily with all concerned. Those rights accruing to creditors by the effect of restraining orders can not be ignored.

The verdict and judgment are directed against the fraudulent acts charged, and leave the proceedings of insolvency unaffected thereby, and the property of the insolvent subject to such future actions as the creditors may see proper to take.

The judgment is responsive to the verdict. They are both directed against the fraudulent acts of the insolvent.

The action of the meeting of creditors, such as it was, is not final. Creditors having no right to vote participated. It was not a fair expression of the majority of the creditors in property and amount. Such a body, under the circumstances and the charges proved, has no authority to accept a cession or grant a discharge.

Other proceedings and at least one other meeting of creditors will have to be held in carrying out the object of the insolvency laws. Gumbel & Oo. vs. Andrews, 45, and Morris McGraw vs. O. B. Andrus, Oonsolidated, 45 An.

Judgment affirmed at appellants’ costs.

On Application nor a Rehearing.

The defendants and appellants in their application for a rehearing allege:

The lower court awarded them a judgment for costs against Clinton B. Andrus personally. This court has decided that the cession made by Andrus, including the property attached in the hands of S. V. Major, vest in the mass of the creditors the right of administering and selling the insolvent’s property. Andrus therefore has no property exigible for these costs, and.if he had, this court has decided that it must go into the mass of his insolvent succession, and that these individual creditors have no recourse whatever upon any property that he might have.
Therefore a personal judgment against Andrus for these costs is entirely nugatory and valueless. These costs should be paid by the insolvent succession and by privilege. O. O. 3195 and 3727 give a privilege for the payment of these claims. ’ ’

There was no issue about costs at any time prior.

They follow the judgment in condemning O. B. Andrus to pay costs.

In the lower court, and in this court, it unavoidably follows that he is condemned to pay the costs as an insolvent debtor; that they must be carried on the account of the syndic as an indebtedness of O. B. Andrus, insolvent debtor, to be paid out of the proceeds of the insolvent’s estate.

Having made a surrender of this property, the costs of suits decided against him since the surrender in matter growing out of, and intimately connected with, his surrender of his property must be paid out of the insolvent’s estate.

Such is the intention of our decision; its terms leave no other possible reasonable inference.

This was also in effect, in so far as relates to costs, the lower court’s judgment.

These costs are secured as to their payment by such privilege as the law accords.

There is no issue presented as to that privilege.

We will not grant a rehearing to allow that which the terms of our ■decision secures.

The judgment on appeal is one. of interpretation. It does not amend the judgment of the District Court.

In St. Louis National Bank vs. Joseph Block, 44 An. 893, we interpreted the judgment of the lower court and subjected the judgment “ to the limitations stated in this opinion.”

In that decision, not only interpreting but limiting the judgment of the court in certain respects, the appellant was condemned to pay costs.

In the decision in the case at bar the court’s action is limited to interpreting the judgment.

It follows that the appellant owes the costs.


author: McEnery, J.

text:
    No. 1451.
    Morris McGraw vs. C. B. Andrus. Zuberbier & Behan vs. C. B. Andrus. Wackerbarth, Joseph & Co. vs. C. B. Andrus. L. Oppenheimer & Co. vs. C. B. Andrus. Scharff Bros. vs. C. B. Andrus.
    Consolidated.
    The creditors of an insolvent who has made a cession, which has been accepted, are vested with full power to administer and sell the property of the insolvent for the benefit of all the creditors. Their dominion over the property is supreme, and as all the property of the insolvent debtor, whether on the schedule or not, passes from the debtor, subject only to reinvestment in him on paying the amount of his debts with the expenses attending the cession, they have the same power over that concealed and left off the schedule. The resident creditor, whether participating in the insolvent proceedings or not, is bound by the surrender and acceptance, and it may be stated as a general rule that no individual creditor can take any action in relation to the property surrendered to give him an advantage over the others. Whatever concealed property he may be instrumental in recovering inures to the benefit of all the-creditors.
    ft here the insolvent has been found guilty of fraud, the effect of the conviction operates upon his person, depriving him oí the benefits of the insolvent iaws- and subjecting him to punishment. It does not reinvest the property surrendered in the insolvent debtor.
    Notwithstanding the order staying proceedings the creditors retain the privilege of protecting themselves in proper cases, not only by the arrest of their debtor but also for the seizure of bis property not surrendered forthe benefitof all the creditors.
    Property recovered in an action en declaration dc simulation inures to the benefit of all creditors and all persons interested, as the property had never ceased to be-the property of the debtor.
    The estate of the insolvent must pay all expenses for the recovery of property which inures to the benefit of all the creditors.
    APPEAL from the Eleventh District Court, Parish of St. Landry. North Oullom, Judge ad hoe.

      Thos. H. Lewis for Plaintiffs and Appellees.

      Kenneth Baillio for Defendant and Appellant.

      Estilette & Dupré for the Provisional Syndic, Appellant.
   The opinion of the court was delivered by

McEnery, J.

These suits were instituted in the month of December, 1890, against O. B. Andrus, who had on the 24th day of November, 1890, made a cession of property, obtained the usual restraining order from the judge and an order for a meeting of his creditors.

The plaintiffs in these suits made substantially the same allegations and obtained writs of attachments upon a stock of goods, wares and merchandise, at the time in the possession of one L. V. Major.

They allege that on the 24th day of November, 1890, said Andrus made what purports to be a cession of property; and that the same was acepted by the judge subject to the action of the creditors at a meeting to be held, as appears by the suit of Clinton B. Andrus vs. His Creditors, No. 1474; that in said cession and in the schedule of assets annexed to his petition said Andrus did not include all his property, and especially a lot of goods, wares and merchandise valued at $2000, and which previous to his surrender and in anticipation óf it he, the said Andrus, moved out of his store into a storehouse situated in another part of the town of Opelousas and placed in the possession of said L. Y. Major, the simulated and pretended owner, but really the clerk and agent of said Andrus; and that said Major was selling and disposing of said goods for the use and benefit of said Andrus; that said Andrus had also concealed from his creditors a large amount of cash; and that in withholding said goods and cash from his schedule he did so knowingly and with the intent to place the same beyond the reach of his creditors, and to defraud them; that a short time before the cession he ordered goods from merchants on ninety days’ credit, which goods were shipped to him and concealed and withheld from his cession and put on sale for his account, use and benefit, by the said L. V. Major; that Morris Mc-Graw, one of the plaintiffs, on the 18th of November, 1890, through his agent, sold a bill of goods to said Andrus on ninety days’ credit, and which on being shipped to him on the 20th and delivered on the 22d of November were immediately turned over to L. Y. Major; that a short time before Andrus made his surrender, and after he had placed said stock of goods in possession of Major, he ordered from Scharff Bros., of St. Louis, a delivery wagon and harness and six barrels of apples, which he directed to be shipped direct to L. Y. Major, the apples to go into his stock and the delivery wagon to aid the said Major the more effectually to carry on the business which he was carrying on for said Andrus; and that in order to conceal the fact that said delivery wagon was to be used really in his service and for his benefit, said Andrus ordered Scharff Bros, to have L. Y. Major’s name painted on the wagon and shipped direct to the latter; that said Andrus fraudulently omitted said delivery wagon and harness from his assets, but placed Scharff Bros, on his bilan as ordinary creditors; that according to the schedule his total assets are $16,094.30 and his debts amount to $27,176.22; that the inventory taken of,the property shows assets amounting to $17,175.22, and his privilege and mortgage debt amounts to $17,154.15, by which showing next to nothing will be realized with which to pay the ordinary creditors; that the concealment and diversion of his property and fraudulent cession made by the defendant, Andrus, is injurious to them and other creditors, as it leaves substantially nothing with which to meet their claims if said cession be legalized and definitely accepted; that the order, of court accepting the cession was granted in error, and said order as well as all the other; insolvency proceedings taken by said Andrus, should be set aside and annulled.

Tne plaintiffs prayed for citation upon Andrus and upon Dr. Vincent Boagni, provisional syndic of his estate. They pray further, that the cession of said Andrus and the order of the judge accepting the same be set aside and annulled, and that their attachments upon the stock of goods in possession of said Major, the delivery wagon, harness, etc., be maintained and the property sold to satisfy their debts.

C. B. Andrus filed an answer, denying all the charges of fraud, setting up that the charges are false, libellous, and that he has suffered damages to the amount of $5000, which he claims in reconvention.

The provisional syndic, Dr. Vincent Boagni, did not file any formal answer, but some time after the attachments were levied, and in answer to a rule taken by the plaintiffs to show cause why the goods should be sold as perishable property and the proceeds to remain in the sheriff’s hands, subject to the determination of the suit, he opposed the rule and asked that the property be delivered to him as provisional syndic “in case the same belongs to the insolvent.”

L. V. Major intervened in the suits, claiming to be the bona fide owner of the property attached. He also made a large claim for damages.

The plaintiffs then moved to strike from Major’s intervention his prayer for damages against him, upon the ground that the District Court of this parish was without jurisdiction in the premises, they being non-residents. The court sustained the motion and struck out the claim for damages.

The plaintiffs then answered the intervenor’s petition; charging that his claim of ownership was a fraudulent simulation; but if not a simulation pure and simple, then in that event that the property was acquired fraudulently, and they prayed in that event and in the alternative that his title be annulled and the property be imputed to their debt.

These five consolidated suits were tried together, and having been submitted to a jury the following verdict was rendered:

“Verdict for plaintiffs, rejecting the claims of L. V. Major, intervenor, for the goods claimed by him, sustaining the writs of attachment at cost of defendant.”

The lower court' thereupon gave judgment to each of the plaintiffs for the amounts claimed by them respectively; rejected and disallowed the intervenor’s claim of ownership to the property attached, and maintained and perpetuated the attachments.

The questions to be considered are whether individual creditors may attach the insolvent debtor where it is alleged and shown that he is using the staying order of the' judge as a shield while he is fraudulently disposing of his property, and if so what is the effect of the suit instituted by the creditor, whether the property not placed on the schedule, and seized by him under a conservatory writ, and secured under an action era déelara.tion de simulation inures to the benefit of the individual creditor or to all the creditors.

The cession or surrender of property is the relinquishment that a debtor makes of all his property to his creditors when he finds himself unable to pay his debts. O. O. 2170.

When the cession is made and accepted by the creditors, the property passes from the debtor, subject only to reinvestment in him before they have sold it, by a payment by him of the amount of his debts, with the expenses attending the cession. It is only on this condition that he can regain possession of the property. It is in a situation similar to property seized under a fi. fa. The debtor’s possession and control over the property ceases, and can only be recovered by paying the debt and costs. He is an utter stranger to the property until he redeems it by paying the debt. Oivil Oode, 2178; R. S., Sec. 1791.

The creditors are vested with full power to administer and sell the property surrendered for the benefit of all the creditors. Their dominion over this property is supreme, and as all the property of the debtor, whether on the schedule or not, passes by the cession and acceptance, they have the same power of control in that concealed and left off the schedule by the debtor. The resident creditor, whether participating in the insolvent proceedings or not, is bound by the surrender and acceptance, and it may be stated as a general rule that no individual creditor can take any action in relation to the property surrendered to give him an advantage over the other creditors. Whatever property he may be instrumental in recovering that belonged to the debtor and passed with the cession inures to the benefit of all the creditors. Vicksburg Liquor and Tobacco Co. vs. Jeffries; Anderson vs. Duson, 85 An. 917.

We think it is amply supported by authority that the creditors, particularly when no syndic has been elected, have the undoubted right to sue for and recover property which the debtor has fraudulently concealed. The debtor had never parted with the ownership of the property, and title was still vested in him until he made the surrender, when it passed to the creditors. The recovery of the property by judicial process can not therefore give an individual creditor any claim upon it superior to the other creditors. He would recover only that which was vested in all the creditors, himself included. His act would therefore necessarily inure to the benefit of all the creditors.

But the plaintiffs contend that the debtor had been convicted of fraud and that ipso facto the order accepting the cession and the acceptance of it by the creditors was annulled and the debtor’s property was reinvested in him, and the creditors had the right to pursue it individually.

There is only one condition, as stated, that the debtor can get possession of the property, and that is that he pays the amount of his debts. Civil Code, 2178.

The law never intended that on conviction of fraud that he should regain possession of his property. It would be conferring a benefit upon him. As in this case, the property may have been sold and the proceeds in the hands of the syndic. What prevents him, before judicial process can be leveled at him, receiving this amount from the syndic and placing it beyond the pursuit of his creditors? The benefits conferred upon the honest and unfortunate debtor by the insolvent laws are discharge from his debts and immunity from judicial pursuit of his person and property. The conviction of fraud can only operate upon his person, depriving him of these privileges and subjecting him to imprisonment.

In case of Williams vs. Judge, 42 An. 71, it was held that the court having jurisdiction of the insolvency, and having granted a respite, did not strip itself of jurisdiction over a suit to annul the order by creditors, accompanied by a prayer tor conservatory process, which in that case was the service of an attachment. In the opinion this court said: “It is right and proper, particularly in ■cases of respite, that creditors, notwithstanding the order staying proceedings, should retain the privilege of protecting themselves in proper cases, not only by the arrest of their debtor, but also for the ■seizure of his property for their common benefit.”

In the ease of Mitchel vs. Dalton, 44 An. 825, a single creditor on his individual claim attempted to secure by attachment proceedings, commenced before the cession of property, a privilege on the property of the debtor, which was surrendered for his exclusive benefit, -and ignored the insolvent proceedings. The dismissal of the suit and the dissolution of the attachment followed this irregular and unwarranted proceeding. We adhere to the doctrine in that case. But in this case the attachment was levied on property not on the schedule, but which was found by the plaintiff creditors, and seized for their individual benefit. The insolvent proceedings are not ignored, but are made the basis of the suit. The irregularities therein, in withholding this property from the schedule, is one of the grounds for the suit. Although conducted separately by the creditors for their individual benefit, the proceedings may be consolidated with the insolvent proceedings for the benefit of all the creditors. Through the intervention of the provisional syndic the creditors have made themselves parties to the suit, and they are entitled to its benefits for the simple reason that creditors can not pursue the property of the insolvent for their individual use. Anderson vs. Duson, 35 An. 917; Haydeh vs. Yale et al., 45 An.

' The plaintiffs assimilate their suits to the revocatory action, and as plaintiffs in said action are entitled to the benefit of the property recovered and that it should be applied to their debt. But this action is one to obtain property which it is alleged never passed from the debtor. It is a part of the insolvent’s estate. There was no contract by which the property was transferred.

When the contract is serious, though fraudulent, the decree avoids it only as to the complaining creditor, and subjects it to the payment of his debt. Dunn vs. Woodward, 11 An..267; Adams & Co. vs. Coons et als., 37 An. 305.

In the last case referred to above, which is the latest on this subject, this court said:

“ It is claimed that plaintiff can take no benefit from, the judgment in the case of Friedlander vs. Brooks, annulling the pretended title of Mrs. Coons land declaring ‘ Killikroskie ’ to be the property of Tempel S. Ooons, but said judgment only availed Friedlander and entitled him to be paid by preference. If the action had been merely revocatory such could have been the law, but being purely an action en déelaration de simulation it is well settled that the effect of the judgment was to unmask the title in favor of all creditors and all persons interested, and to declare that the property had never ceased to be the property of the debtor.” Authorities cited in case Lucus vs. Darmand, 11 An. 168; Dunn vs. Woodward, 11 An. 265; 1 Larombiere, Theory of Obligations, p. 776.

The provisional syndic has not aided in unmasking the fraudulent concealment of the debtor’s property. This has been accomplished by the plaintiff creditors, who have devoted time, money and labor to reach this property. The mass of creditors receive the benefits. They must pay for all costs and expenses, including attorneys’ fees.

It is therefore ordered, adjudged and decreed that the judgments appealed from in each of the cases of Morris McGraw, Zuberbier & Behan, Wackerbarth, Joseph & Oo.,. Oppenheimer & Co., Scharff Bros. vs. O. B. Andrus, be reversed so far as it decrees that the proceeds of the property attached be applied to the claim of the plaintiffs; and it is now ordered that said funds or proceeds of said property be turned over to the provisional syndic of the insolvent estate of O. B. Andrus, subject to the rights and claims of all the creditors therein. In all other respects the said judgments are affirmed.

It is further ordered that the insolvent’s estate pay all costs, including attorneys’ fees.

On Application for Rehearing.

Both appellants and appellees have filed applications for a rehearing in the above eases. '

In relation to the application of appellee we will leave the amount of attorneys’ fees to be fixed in the insolvent proceedings. We are not in the possession of sufficient facts to definitely ascertain the amount. The costs and privilege will of course be fixed as now established by law.

The provisional syndic asks for an amendment of the judgment releasing the insolvent debtor from paying costs of appeal.

Without granting a rehearing we will amend the judgment in this respect.

It is therefore ordered that the decree heretofore rendered be amended so as to assess the costs of appeal to the appellees. In all other respects it will remain undisturbed.

Rehearing refused.