Lang v. Their Creditors

14 La. 237 | La. | 1840

Martin, J.,

delivered the opinion of the court.

In this case, Carnes, a creditor of the insolvents, opposed the provisional tableau of distribution, filed by the syndic, after its homologation, but before the judgment, ordering it to be homologated, had been signed. The judge refused leave to the creditor to file his opposition ; and he then moved for a new trial, which was refused, when the present appeal was taken.

Our attention is drawn to a bill of exceptions taken to the refusal of leave to file the oppósition; the judge being of opinion that it was offered too late.

The counsel of the appellant relies on the case of Long-bottom’s executor vs. Babcock et al., 9 Louisiana Reports, 48, in which we held, that the article 1004 and 1008 of the Code of Practice, require that opposition should be made to an executor’s or curator’s account, within three days after filing it; but it does not prohibit the making of opposition after the lapse of three days, and before the final judgment of homolo-gation of the account. That case was an opposition to an executor’s tableau filed after the legal ydelay; and we said, arguendo, that as a general rule, “when an act is to be done within a given time, as the filing an answer and the like, it may be done afterwards, if nothing occurs to prevent it. Thus, if a judgment by default has not been taken, an answer may be put in to the merits, although more than ten days have elapsed from the service of citation.” The case relied on, differs from the present in this : that nothing had been done since the expiration of the legal delay ; while in the present, a judgment was pronounced.

The case of Chiasson’s Heirs vs. Dupuy et al., 9 Louisiana Reports, 57, is next cited, in which we recognized the principle laid down in the preceding case.

Lastly, the case of Avart vs. His Creditors, 6 Martin, N. S., 652, is said to be conclusive on the question under consideration. The marginal note is: “ Creditors may oppose the tableau of distribution at any time previous to the judgment of homologation being signed.” The facts of that case are : In December, 1825, a partial tableau had been filed, which was homologated in January following. ' In April, 1827, judgment of homologation not having yet been signed, an additional tableau was filed ; and in July following, judgment, homologating the first tableau, was signed; but on the filing the second tableau in April, one of the creditors had made opposition thereto on grounds relating to both tableaus, principally to the rank of another creditor, placed as a privileged one on both tableaus. The opposition being overruled, the opponent appealed. The judgment was reversed in this court, and the case remanded, with directions to determine on the opposition.

An opposition to the provisional tableau filed by a syndic, comes too late, ■when ten days have expired after the order of publication, and ■when judgment of homologation has been pronounced, although it be not signed. A new trial will not be granted when a party has neglected to file his opposition to a tableau until judgment of ho-mologation has been pronounced, even if he presents himself and moves for it before judgment is signed.

It was urged, that the first tableau had been homologated in the presence of the opponent, after an amendment, which he provoked, without his opposition to any other part; therefore, his opposition could not be received.

On the part of the appellant, it was replied, that the judgment of homologation was interlocutory, and did not form res judicata; and if it be otherwise, the opposition was in' time, before the judgment of homologation was signed. We expressed a doubt whether such judgments are interlocutory or final; but thought they could not be considered as final, until signed.

It does not appear to us that the marginal note is supported by the decision, which appears to us to be, that the place of the creditor amongst the privileged ones, was not conclusively settled by the homologation of the first tableau, which, at the time it was contested, was not yet signed.

The law fixes a delay, within which opposition to a tableau of distribution is to be made : that delay is not, however, fatal, as long as proceedings are suspended ; but, when judgment of homologation is pronounced, creditors, who deem themselves injured by it, cannot be relieved, otherwise than by a new trial; and this cannot be obtained by a party who has neglected to file his opposition, until the judgment of homologation be pronounced. If it were otherwise, the final homologation of the tableau could be indefinitely protracted by creditors coming one after the other, and claiming a new trial, till judgment be actually signed.

The case of Avart vs. His Creditors, establishes only that in an opposition to a second tableau, the creditor may be relieved as to the property distributed therein, from any injury he may have sustained in the first, especially when he has urged his claim to relief before the judgment homologating the first tableau be signed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.