50 La. Ann. 1047 | La. | 1898
On Motion to Dismiss Appeal.
The ground upon which the appellee seeks to dismiss this appeal is that the appellant’s second extension of the return day thereof had neither been requested of this court or granted by it until after the date when the first extension had expired — the order of the court granting the first extension having extended the time for the return of the appeal to the first Monday and first day of November, 1897, and that granting the second extension having been made on the second day of November, 1897.
The application for the second extension of the return day of "the appeal was filed on the second day of November, 1897, and the order of this court granted an extension on and allowed three judicial days thereafter within which to file the transcript of appeal — that is, until the 4th of November, 1897, the court being in session. And in conformity with that order the transcript of appeal was filed in this court on the 4th of November, 1897. The first Monday was the first day of November, 1897.
True it is that in the first application which was made by the
But it is equally true that said averment and order were in exact conformity with the language of the Constitution, viz.:
“The Supreme Court shall hold its sessions in the city of New Orleans from the first Monday in the month of November,” etc. Art. 84.
That it so happened this year, 1897, that the first Monday of November occurred upon the first day of that month, relieves the appellant from the necessity of strict compliance with the order of court extending the return day — the first day of November being under the law a day of public rest, and a legal “ holiday,” or dies non. Act 98 of 1892.
That statute declares that all commercial paper which shall by law or commercial usage be required to be protested for non-payment “ shall be deemed to be due, and shall be due and payable on the first day not a Sunday or legal holiday succeeding the third, or last day of grace, if the third or last day of grace be a Sunday or legal holiday,” etc.
It seems but reasonable and just that a like interpretation should be by this court placed upon this statute with regard to the return day for appeals, in that it equally affects all judicial proceedings, .and stays and restrains judicial action thereon upon dies non.
The decision of the court in Bienvenu vs. Factors and Traders Insurance Company, 28 An. 901, is not in point, for the court say :
“ The question presented is, has the appellant a delay of grace for filing the transcript after the day to which the return is extended if such extended return day is not a judicial though a legal day9
• “The question must be answered in the negative.
“ It is well settled that no days of grace are allowed after the day to which the extension is granted.
“ The further time granted for bringing, up the appeal, under Art. 888, C. P., is simply an extension of the days of grace, a postponing of the return day by order of the court, which becomes fixed, if not moved or postponed, by antecedent order of the court." ■
Counsel for the appellee cites and much relies iipon the decision of our immediate predecessors in Sun Mutual Insurance Company
The court in that opinion refers to the ease of Surrat vs. L’Hote, then recently decided, and said:
“ We held that when an extension is granted to a day not inierm time, the transcript may be filed on the first day of the ensuing term, and, as here, the term of this court commences on the first Monday in November and lasts until the end of May, and as it was duriny term time that the delay was extended and expired, the appellants could have preserved their right by simply applying for a, further extension.”
It is plain that the syllabus of that ease disagrees with the text.
In that case the return day was extended during term time, and that day arrived and the delay expired in term time; but in the instant ease the delay expired on a day when the court was not in session and had not convened because the day fixed for the extension and for the convocation of the court was not a legal day but a dies non.
Under this state of facts it was utterly beyond the power of the appellant to have obtained a further extension, because the court had not convened for the term, and could not convene on the date-fixed in the Constitution because it was not a legal day.
In State ex rel. Luling vs. Judge, 24 An. 333, it was said by the court:
“ It appears that the return day as extended was the 28th of February, which was Sunday. * * *
“ The return day occurring on Sunday, we think the appellant was entitled to the whole of the next day to file his appeal.”
Applying the principle announced in that opinion to this case, the appellantwas legally entitled to apply on the day he did for an additional extension of the return day.
In our examination of the case cited, and others, we have found no countervailing authority.
The motion to dismiss is not well grounded.
It is therefore denied.
On the Merits.
This is an appeal by the receiver of the Aarons-Mendelsohn Company, Limited, from the judgment dismissing his demand against Elias Aarons for five thousand dollars.
The petition of the receiver alleges that the officers of the corporation, its shareholders and the defendant, related or connected by marriage, combined and colluded to place the property of the corporation beyond the reach of its creditors; the corporation being insolvent, to the knowledge of defendant, an employee, and cognizant of the financial condition of the corporation; that in furtherance of this combination the defendant, under color of a collusive and fraudulent sale about the time the receiver was appointed, took possession of the bills receivable and accounts of the corporation and is receiving and illegally appropriating the collections; that there are no other assets except of inconsiderable, if of any value,, to pay the creditors, and the petition prays for judgment against-defendant for five thousand dollars. The answer is, substantially, the general issue, with the averments of the purchase of the stock of merchandise of the corporation at sheriff’s sale under the executions of their creditors; that he then purchased the book accounts and bills receivable for .a fair price paid by him; and the validity of the sale is insisted upon, but the answer avers that save the amount-collected, twenty-four- hundred dollars, the assets are worthless, and that defendant is willing to return all he purchased, including all collections, for an amount equal to the price paid, and for his-services and time in making the collections.
In the petition it is the sale of the accounts and bills receivable
When the corporation failed it had pledged tobacco to the banks and others creditors. Tbe defendant acquired the tobacco from the creditors holding it in pledge for the amount of the pledge debts. We find in the petition no allusion to these acquisitions of the firm’s tobacco, but a large part of the testimony is devoted to these transactions, and it is contended in argument that defendant thereby acquired an advantage to the detriment of creditors. It was some months after the failure before the pledged creditor obtained payment. In that period it is claimed, and there is testimony in the record to the effect, that efforts were made to sell the tobacco, and pay the pledge debts, and it was after these efforts failed that the defendant having succeeded to the business of the. corporation in part, we infer, the manufacture of cigars, obtained the tobacco on payment of the pledge debts. If in these transactions the creditors of the corporation sustained injury, the revocatory action is adopted to give full relief. But there are before us neither allegations or proof on which we can base any relief in respect to the tobacco pledges.
As to the sheriff’s sale of the • merchandise, it was open to all bidders. The defendant stood on an equal, but no better footing than all others. The fact he had better means of knowledge of the stock and- its value derived from his connection with the late firm and his intimacy with its members give us no basis to hold tha sale void, or as furnishing plaintiff any cause for complaint.
It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.