45 La. Ann. 765 | La. | 1893
Lead Opinion
The opinion of the court was delivered by
This is an action to annul and set aside an order of court appointing two provisional syndics for the insolvent estates of John Oalder & Oo. and of David R. Oalder, individually, in so far as it affects the one-half interest of the deceased member of the co-partnership, John Oalder, and also the order of the judge accepting the surrender of the interest of said John Oalder in the assets of John Oalder & Oo., consisting of real estate described in the schedule as property of the firm.
Also to strike from the insolvent’s schedule all of the real estate standing in the name of John Oalder, as described in list B annexed thereto.
Also to annul the order of court accepting the surrender of all the property of the deceased, John Oalder — reserving the rights of all parties having claims to assert against the same in the succession of the deceased.
Prayer is further made to the effect that the provisional syndics be enjoined from, in any way, interfering with petitioners, as executors of the deceased, in their possession and control of the property of his succession.
A fair summary of facts necessary to be stated is as follows, to-wit:
The commercial firm of John Calder & Co. was composed of John Calder, owning one-half interest, and of John H. Calder and D. R. Calder, each owning one-fourth interest. It was dissolved in 1884 by the death of John H. Calder; and in February, 1885, John Calder died — leaving David R. Calder as the only surviving member of the partnership. John Calder left at his demise a surviving widow and two minor children; and in his will he appointed three executors, all of whom were duly qualified. Subsequent to the death of his two partners, D. R. Calder conducted the business under the firm name, just as though no change had taken place, until business losses resulted in the cession and surrender above mentioned.
The petition accompanying the schedules purport the cession and surrender of John Calder & Co. as well as of D. R. Calder, though the names of the members of the firm are not given; and the order of acceptance of the surrender that is endorsed upon the petition, includes the property of the firm of John Calder & Co. as well as that of D. R. Calder.
The schedule of property of the insolvents includes, that of the firm; that which, though standing in the name of D. R. Calder, is that of the firm; and that of John Calder, individually.
The judge a quo maintained the exception of no cause of action, mainly on the ground, undoubtedly, that the plaintiffs had mistaken their action, or, in other words, that they should have sued the syndics for the property of the deceased partners, they claimed the right to control, and not for the revocation of the order accepting the cession of the partnership, because of it embracing, as they allege, property that did not legitimately compose a part of the assets of the insolvent who made the surrender.
Wé are of opinion that the judge a quo properly maintained the exception.
David R. Calder had undeniably the right to make a surrender of his individual share or interest in the commercial firm or partnership of which he was or had been a member. And we think it equally undeniable that he had the right to make a surrender of the partner
It is a precept of the code that “ if there be a commercial partnership in which the deceased was concerned, the surviving partner, after the portion of the deceased in the partnership has been ascertained and the estimate of it made on the inventory, shall have a right to require that this portion remain with his own, in order that the whole may be disposed of for the common profit in the ordinary course of trade, and the proceeds applied, as far as is necessary, to the payment of partnership debts.” R. C. C. 1138.
It is likewise a precept of the code that “ partnership property is liable to the creditors of the partnership, in preference to those of the individual partner.” R. C. C. 2823.
While these precepts are not actually applicable to the administration and settlement of insolvent estates per se, yet there is to be drawn from them a good logical reason why the assets of a partnership should be controlled and managed by the surviving member of the firm, in order that they might be the more surely apphed to the payment of partnership liabilities, for which he is himself responsible ; and this reason suggests, at least, the propriety of the judge’s acceptance of the surrender as it was made.
There is another precept of succession law that, in our opinion, has a decided applicability, and that is the one authorizing a claimant to property in the possession of a succession representative to institute a direct action against the succession for its recovery. Dubuch vs. Wildermuth, Administrator, 3 An. 407; Succession of Porter, 5 Rob. 98; Succession of McCarthy, 5 An. 434; Carthey vs. Ker, 15 An. 228; Succession of Sanchez, 41 An. 504; Hen. Dig., p. 1513, B. 1, and authorities cited.
This principle is strictly applicable to the cession and surrender of an insolvent.
It is undoubtedly better practice to relegate the question of ownership vel non and all kindred questions, to a direct’ action in which the rights and interests of all parties concerned, as well as creditors, can be legally and finally determined.
For, if the plaintiffs should be successful in this suit, nothing could be determined but the right of the provisional syndics to exercise dominion over the property of the deceased, and the creditors of
Judgment affirmed.
Rehearing
On Application por Rehearing.
Considering plaintiff’s petition as one containing alternative demands, first for the revocation of the order appointing the provisional syndics, and second for the recovery of certain property therein described, if this appointment is maintained, it is our opinion that, while adhering to the views expressed, our judgment should be amended so as to remand the cause to the lower court, reserving to both parties the right to alter their pleadings in respect to the claim of ownership, so as to try that issue without instituting a new suit — though a rehearing is unnecessary.
It is therefore ordered, adjudged and decreed that the judgment heretofore pronounced be so amended as to maintain the cause of action in so far as plaintiffs’ claim of ownership of certain property is concerned, reserving to the parties respectively, the right to amend their pleadings; and that for this purpose the cause be remanded— the costs of appeal to be taxed against the estate of the insolvent.
Rehearing refused.