Louque v. Hercules Oil Co., 127 So. 866

Louque v. Hercules Oil Co.

127 So. 866 | La. | 1929

Lead Opinion

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *357

On Motion to Dismiss Appeals. The motion to dismiss is directed against three appeals taken from the judgment homologating the final account of the receiver of the defendant Hercules Oil Company, Inc. The appeals are by Joseph C. Copping, individually and as president of the defendant company, and Paul W. Maloney, whose oppositions to the account were dismissed by the court below.

The appellee urges the dismissal of the appeals on the following grounds, viz.:

1. That the appeal bonds are insufficient in amount.

2. That the transcript filed by the appellants is, in effect, no transcript at all, because *358 the appeals were not brought up to this court in separate transcripts.

3. That the filing of a joint transcript by the appellants instead of three separate transcripts is equivalent to the abandonment of the appeals.

4. That the opposition filed by Joseph C. Copping, as president of the defendant company, and the appeal from the judgment thereon are void for lack of authority on his part to represent the company.

5. That without warrant in law the appellants filed their transcript under a number covering a pending appeal; hence there is no legal transcript on behalf of appellants before this court.

We do not find that any of the grounds urged by the appellee is sufficient to cause us to dismiss the appeals.

The first ground of appellee's motion is governed by Act 112 of 1916. According to the statutory provisions, an appeal should not be dismissed where the bond is insufficient in amount, unless the appellant has been placed in default in the court of original jurisdiction in the manner therein provided. It is not pretended that this was done in this case; hence it is too late for the appellee to urge the objection in this court. Carter v. Aetna Casualty Surety Co., 165 La. 478, 115 So. 662; Grant v. Succession of Grant, 159 La. 535, 105 So. 611.

The second and third grounds of appellee's motion involve the same contention, and may therefore be considered and disposed of together. The answer to the contention is to be found in the settled jurisprudence of the state, under which the general rule is that, where there are different appellants in the same case, their appeals may be embraced in one transcript, which can be filed by either one of them, without incurring the *359 penalty of dismissal. State ex rel. Swords v. Estorge,110 La. 481, 34 So. 643; Standard Cotton Seed Oil Co. v. Matheson, 48 La. Ann. 1321, 20 So. 713; Succession of Touzanne, 36 La. Ann. 420; Baham v. Langfield, 16 La. Ann. 156; McGregor v. Barker, 12 La. Ann. 289.

The appeal is not by a third party claiming an interest, but by a party litigant cast in the judgment appealed from. Therefore, the fourth ground of appellee's motion means nothing more than that the appeal is without merit. But even if an appeal be purely frivolous, the appellee's remedy is to be had in the affirmance of the judgment when the appeal is heard on the merits, and not by its dismissal on motion. Cochran v. La. State Board of Education, 168 La. 1030, 123 So. 664; Borden v. La. State Board of Education, 168 La. 1005, 123 So. 655.

Under the fifth and last ground of his motion the appellee objects to the consolidation of certain appeals contained in four transcripts which have been filed in this court under the number and title set forth in the caption hereof. An examination of the transcripts discloses that the judgments appealed from were rendered in the same case — the proceedings of the receivership of the Hercules Oil Company, Inc. The appellants and the appellee are the same in each of the appeals except in the last one taken, in which Paul W. Maloney appears as an additional appellant. The first appeal is from a judgment dismissing the appellants' opposition to the appellee's petition for a sale of the company's property. The second appeal is from a judgment dismissing a rule taken by appellants for the rescission of the adjudication made under the order of sale. The third appeal is from a judgment dismissing the appellants' opposition to the application of the appellee for the approval *360 and confirmation of the sale in question; and the fourth appeal is from a judgment dismissing appellants' oppositions to the final account of the appellee, under which he proposes to distribute the proceeds arising from the sale of the company's property. From this recital of the subject-matter of the appeals it is plain that they all tend to one result — the determination of the validity of the sale by the receiver of the company's property and of the correctness of his proposed distribution of the proceeds of that sale. The questions involved are intimately connected, and for the interest and convenience of all parties concerned we think the appeals should be heard and disposed of at one and the same hearing. For this purpose they are properly consolidated in this court under the same number. We know of no law or principle, and have been referred to none, which forbids this method of procedure. Nor can we conceive of any injury the appellee may suffer by reason of the consideration and disposition by this court of all the appeals simultaneously.

For the reasons assigned, the motion to dismiss the appeals herein is overruled.

On the Merits.

Addendum

This involves a series of appeals, all taken in the same proceeding. In passing upon the motion to dismiss the same we summarized the substance of said appeals as follows:

"The first appeal is from a judgment dismissing the appellant's opposition to the appellee's [receiver's] petition for the sale of the company's property. The second appeal is from a judgment dismissing a rule taken by appellants for the rescission of the adjudication made under the order of sale. The third appeal is from a judgment dismissing *361 the appellants' opposition to the application of the appellee [receiver] for the approval and confirmation of the sale in question; and the fourth appeal is from a judgment dismissing appellants' oppositions to the Final Account of the appellee, under which he proposes to distribute the proceeds arising from the sale of the company's property.

"From this recital of the subject matter of the appeals it is plain that they all tend to one result, the determination of the validity of the sale by the receiver of the company's property and the correctness of his proposed distribution of the proceeds of that sale."

I. As to the sale of the company's property by the receiver, that appears to us to have passed out of the case. The property has been delivered to the purchaser, the price has been received and partly distributed by the receiver, and the proceeds of sale are now being claimed by the appellants. The sale is therefore an accomplished fact which it would be impractical to disturb at this stage without manifest injury to the interests of all concerned.

II. As to the proposed distribution of the proceeds of sale, the first complaint of the appellants is that the receiver has not proved his account. But he and his bookkeeper swore to the correctness thereof; and that suffices where there is no evidence to the contrary and the opposition to the account is general in its terms. Merchants' Farmers' Bank Trust Co. v. Hammond Motors Co., 168 La. 616, 122 So. 869.

The opposition of J.C. Copping was properly dismissed. He claims $5,000 on a note secured by chattel mortgage on the *362 company's property. But this note and mortgage were executed without authorization whatsoever from the company and only a few days before the appointment of the receiver.

Aside from all want of authority to issue said note and execute said mortgage, it appears that the opponent (who was president of the company) issued the note to himself as security for alleged debts of the company for which opponent claims to have become surety. But neither the amount of said debts, nor the fact of opponent's liability therefor, has been established, so that, even if the note has been duly authorized, the extent of the company's liability thereon would still remain unproved.

The opposition of Paul W. Maloney was dismissed below, but should have been maintained in part.

He claims $1,500 for legal services rendered to the company before the receivership. The evidence satisfies us that the far greater part of these services were rendered to Copping, the president, personally. But at the same time he did render some services to the company in connection with some loans made to it by banks, and the security to be given therefor. We fix the value of the services rendered to the company at $250.

He also claims $2,500 for legal services rendered to the company in connection with the receivership proceedings.

In this again we find the far greater part of these services were rendered to Copping personally, in opposing the acts of the receiver. However, he did represent the company in opposing the appointment of the receiver (165 La. 143, 115 So. 416), and we fix the value of his services therein at $400. He also expended in costs in connection therewith *363 the sum of $115, which he is entitled to recover. As to these two last items, aggregating $515, he is entitled to rank as a privileged creditor. Wolbrette v. New Orleans Drug Co.,149 La. 433, 89 So. 406. But as to the $250 for services rendered before the receivership proceedings he is only an ordinary creditor.

Decree. It is therefore ordered that the account of the receiver herein be amended by placing Paul W. Maloney thereon as a privileged creditor for the sum of $515, with rank of law charges, and as an ordinary creditor for the sum of $250; and as thus amended said account is homologated and the funds ordered distributed accordingly. The costs of this appeal to be paid by the receivership.