Lang v. Their Creditors

14 La. 241 | La. | 1840

Morphy, J.,

delivered the opinion of the court.

W. R. Carnes, a creditor of the insolvents, is appellant from a judgment of the District Court, dismissing his opposition to a final tableau of distribution. He complains, that he is therein set down as an ordinary creditor, while he is entitled, as he alleges, to the vendor’s privilege on five hundred and forty-four dollars, that sum being the proceeds of some furniture by him sold to the insolvents, and found in their possession at the time of their failure. We think that the court below did not err. It appears, that in a first or provisional tableau, this sum figures among the assets of the estate, as resulting from a separate sale of furniture, made at the instance of the appellant, but that the syndic, refusing to recognize the privilege he now contends for, did not place it among the privileged claims. The latter amounted to one thousand eight hundred and eighty-four dollars and forty-one, cents, leaving,’ for the ordinary creditors, a balance of one thousand four hundred and seventy dollars and thirty-two cents. Carnes opposed the homologation of the tableau, claiming to be privileged, on the proceeds of the furniture, but his opposition, being too late, was overruled by the district judge, whose decree was affirmed by this tribunal, on amappeal brought up by the present appellant.

The judgment of homologation of a tableau of distribution, so far as it settles the rank and privilege of creditors, is final, and must have the-authority of the thing adjudged. A creditor, placed on the first tableau without a privilege, cannot, on the filing of a second, claim a privilege, because the funds on which he seeks to enforce his privilege have been carried to the account of the mass of the ordinary-creditors, at the footoflhesecond tableau.

It has been repeatedly held, in this court, that a judgment of homologation, so far as it settles the rank and privilege of the creditors, is final, and must have the authority of the thing adjudged. Louisiana Insurance Company vs. Campbell, 6 Martin, N. S., 133. Mayfield, vs. Comeaux, 7 Martin, N. S., 183. Ory vs. His Creditors, 12 Louisiana Reports, 122. But the appellant insists that he is yet in time to urge his privilege, because no distribution has been made of the amount on which he claims it: that the evidence shows the balance of one thousand four hundred and seventy dollars and thirty-two cents of the former tableau to be yet in the hands of the syndic: and finally, that said tableau was irregular and defective, inasmuch as the said balance is carried to the credit of the mass of the ordinary creditors, without their names or claims being set forth, as required by law. We do not perceive how the fact of no distribution having been made of the funds declared to belong to the mass of the ordinary creditors, or the irregularity pointed out in the former tableau, can, in any way, help the appellant in establishing the privilege he now seeks to obtain. His opposition to the first tableau was for the sole purpose of obtaining, among the privileged creditors, a rank which had been denied him. The final judgment, dismissing his opposition, forms an insuperable bar to his renewing any claim for a privilege on the balance at the foot of said tableau, irregular and defective as it may be in other respects. Even if the present appellant had succeeded in raising in our minds some doubts as to the correctness of the former judgment, we could not touch it. Res judicata pro veritate accipitur.

As to the new assets, the distribution of which the court below is now called upon to regulate, they do not include any portion of the proceeds of the separate sale of the goods alleged to have been sold by Carnes to the insolvents ; the appellant has, consequently, shown in them no privilege or cause of preference whatever.

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