37 So. 8 | La. | 1904
Opinion on the Merits
On the Merits.
Notice of the filing of the account was entered on the order book, and was published
On the trial evidence was adduced showing notice of the filing of the account by entry in order book and by publication, and the receiver testified that the account was correct as to collections and disbursements, giving details as to collections, and producing 61 vouchers covering all disbursements, except three items aggregating $5.75, which he swore he had paid. All the vouchers have been omitted from the transcript, though the note of evidence states that they were “introduced” and “marked.”
The receiver testified that the claims recognized by the account consist of judgments, notes, open accounts, law charges, and costs incurred in his administration. He further testified that most of said claims were taken from the books of the corporation, and that each and every item carried on the account he knew to be. correct, except the approximate final contingent liability. In this connection it may be noted that there is annexed to the inventory taken by order of court a detailed list of liabilities aggregating $13,531.49.
In his petition for appeal, the appellant complained that the judgment of homologation was rendered without evidence showing the existence and validity of the claims on the account, or the insolvency of the corporation, or the necessity of the assessment on subscriptions.
Boiled down, the contention is that the receiver should have proved every claim on the schedule with the same particularity as is required of creditors in eases of suit or opposition. It is argued that the receiver should have produced the original evidence of each and every claim, or a duly certified copy thereof.
This has never been required in practice in the case of the homologation of an account which has not been opposed. When a particular claim is opposed, it then devolves on the creditor to make the necessary proof of its existence and validity. But where it has been allowed by the representative of the estate and placed on his account, and is not opposed, the presumption is in favor of its correctness, and the testimony of the accountant is sufficient to warrant its homologation. See Succession of Rabasse, 50 La. Ann. 746, 23 South. 910.
It is the duty of a receiver to call for and inquire into all claims against the estate under his administration, and to file a statement of its liabilities.
In this very proceeding we ordered the receiver to cause an inventory to be made, and to file a statement or schedule of the liabilities of the corporation for the information of all parties in interest. See Insurance Co. v. Walle, 105 La. 89, 29 South. 503. He complied with our order, and the statement of liabilities filed by him and appearing in his account was not contested or opposed by any one. This official act, amounting to an acknowledgment by the representative of the estate of the correctness of the claims on the schedule, and dispensing creditors from the necessity of proving their debts by suit or otherwise until contested by opposition, creates a prima facie presumption of the validity of such claims; and when no opposition is made to their approval
The appellant made no opposition to the homologation of the account — did not contest any of the liabilities appearing thereon —but now complains that the evidence was not sufficient to prove their existence and validity. We think that the proof was sufficient to make out a prima facie case. Any other rule would require particular proof by the receiver of every undisputed claim against the estate.
Appellant made no objection to the homologation of the account, but objects to paying his subscription. The case on the subscription is not before the court, but if the receiver should collect from appellant more than is necessary to pay the debts and costs of administration, and to equalize the rights and liabilities of stockholders, the receiver would be bound to restore such excess. See Insurance Co. v. Walle, 105 La. 89, 29 South. 503.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed; appellant to pay costs of appeal.
Lead Opinion
The receiver filed an annual account of his gestión up to June 1, 1903, and prayed that, after due notices, the same be approved and homologated; that he be authorized to apply such portion of the funds as might be needed to the payment of law charges due; and that he be also authorized to call upon each and every stock subscription debtor for the unpaid balance due by him upon each unpaid share of stock to the extent of $65 per share, and to enforce payment thereof by suit.
This account showed total assets, $8,887.-03; acknowledged liabilities, $19,449.02; contingent and disputed liabilities, $6,616.24; and a resulting deficit of $17,178.13, to be covered by the calls on 558 shares of stock at 65 per cent, per share, which, if paid, would produce approximately $18,944.92.
This account was homologated by judgment of the court of date June 23, 1903, which also authorized calls on and suits against stock subscribers as prayed for by the receiver.
On February 23, 1904, George Simon presented his petition to the court for a devolutive appeal from said judgment of homologation. He alleged in his petition that he had been sued as a shareholder for the sum of $250, and set forth therein his grounds of complaint against said judgment of .homologation. The appeal was granted as prayed for.
Motion to Dismiss.
Appellee has moved to dismiss the appeal on the grounds, first, want of jurisdiction in this court, ratione materise, it appearing that appellant’s material interest does not exceed the sum of $250; and, secondly, because the order of appeal is null and void, being in contravention of section 10 of Act No. 159, p. 315, of 1898.
The account filed was an annual account. It showed that the receiver had collected $2,462.02, and paid out $1,067.10, leaving in his hands cash amounting to $1,394.92, and he asked authority to pay out of this balance law charges then due. It further showed total assets collected and to be collected amounting to $8,886.28, and total liabilities estimated at $26,065.67, including contingent liabilities, $4,344.24, and disputed claim, $2,-272. On the basis of acknowledged liabilities, there was a deficit of $10,562.74.
Act No. 159, p. 314, of 1898, § 4, declares that the “value of the property confided to the receiver shall determine the jurisdiction of the appellate court” in case of appeals from orders appointing or refusing to appoint receivers.
This court has jurisdiction where “the fund to be distributed, whatever may be the amount therein claimed, shall exceed two thousand dollars.” Const. 1898, art. 85.
In cases of insolvency, the test is not the amount actually distributed under a provisional account, but the amount of the fund to be distributed in the case. Brierre & Sons v. Their Creditors, 43 La. Ann. 423, 9 South. 640. The account in question shows that this fund exceeds $8,000.
There is no force in the contention that the only matter in dispute is the balance due by appellant on his subscription. This is but an incidental question.
Section 8, Act 159, p. 315, of 1898, requiring the clerk to enter in the order book notice of the filing of every petition, motion, etc.-, in the receivership, has no application to appeals. The object of the statute is to enable parties in interest to opi>ose the granting' of orders applied for by the receiver or other persons.
The motion to dismiss is overruled,
