11 Rob. 37 | La. | 1845
The object of this suit is to obtain the nullity of a certain judgment rendered on the 13th of June, 1844, in favor of the plaintiff William Vance, against the Louisiana State Insurance Company, a corporation whose charter had expired on the 1st of May, 1835. The petitioner states, in substance, that said company was incorporated by an act of the legislature of the 6th of March, 1819, to remain in existence until the 1st of May, 1835. That the said company being still in operation, on the 22d oí December, 1834, William Vance insured, in the sum of #5,000, his commissions on goods that were to be sent and consigned to him, in the ship Springfield, at and
He further represents that no step whatever was ever taken in said suit, from the 5th of May, 1835, to the 13th of June, 1844, when the same was tried ex parte, and judgment rendered for the amount of the claim; that an execution was lately issued under said judgment, and although the same is nugatory, still, as the judgment might be made, under the 16th section, the basis of a claim against the petitioner, he is interested in having the same annulled and set aside as being contrary to law.
The petition proceeds to state divers facts in relation to the cession of property made to his creditors by Wm. Vance, in 1838,‘in whose schedule the claim of f 5,000 was included — to the appointment of H. D. Richardson, as syndic — to the tableaux of distribution by him filed — to the sale and adjudication of the
The petition avers that the proceedings had in said suit were calculated to take the parties by surprise, and to defeat their de-fence j that Wm. Vance, by his cession of property, lost all title and interest in said claim ; that either his syndic, or those claiming from him ought to have made themselves parties to the suit; that said suit was placed on the jury docket, and could only be tried as a jury case ; that the counsel who had filed the original answer- was, in 1844, no longer engaged in the cause; and that the judgment never was served upon any party. It further represents that the Louisiana State Marine and Fire Insurance Company, by reason of its purchase of all the stock of the old company, is bound to protect the petitioner against the said claim, and to settle and extinguish the same, and to relieve him from the danger of the contingencies to which he is exposed. That the concerns of the said Marine and Fire Insurance Company are now administered by three commissioners, appointed for its liquidation ; and that, from the contrivances of the parties herein opposed to him, it is impossible to know for whose benefit the execution was issued, but that he believes Robert Gamble and Isaac Stewart claim to be the owners of the judgment.
Wherefore he prays that said Gamble and Stewart, and the syndic Richardson, and the three commissioners of the Louisiana State Marine and Fire Insurance Company be cited ; that the judgment complained of be annulled, and that an injunction issue, &c.
Stewart and Gamble filed separate answers, in which they disclaim, respectively, all right, title, and interest in the said judgment. A judgment by default was taken against the syn-dic ; and William Vance intervened in the suit for the purpose
Judgment was rendered below in favor of the plaintiff, perpetuating the injunction, and annulling the judgment by him complained of; and from this judgment, William Yance has appealed.
The principal, nay the only question which this case presents, under the pleadings, is, whether the plaintiff has made out such a case as to entitle him to be relieved against the judgment upon which the execution enjoined was issued.
It cannot be doubted that, as one of the stockholders of the Louisiana State Insurance Company, whose charter expired on the 1st of May, 1835, the plaintiff has a great interest in defeating the outstanding claims which may exist against the company. His responsibility results from the 10th section,' which makes him liable in his individual and private capacity to the extent of his shares, in any suit or action pending at the time of the dissolution of the charter, orto be brought thereafter; and if the judgment complained of was shown to have been properly and legally rendered, it is obvious that the plaintiff would be bound to its satisfaction to the extent of his interest in the stock of the company. It is clear, therefore, that if he has succeeded in establishing the grounds of nullity set up in his petition against said judgment, he has a right to demand that its nullity be declared, and that the injunction issued against its execution be perpetuated.
It appears from the evidence, that the suit alluded to in the petition was brought against the company, of which the plain
In the meantime, Wm. Vance sued his creditors; the claim was put upon his bilan; it was sold by the syndic, wifh a number of other claims, and adjudicated to Wm. Stewart for the benefit of Wm. Vance. It appears also that, in the latter part of April, 1835, the Louisiana State Insurance Company transferred all its titles, rights and interests in the capital stock, to the Louisiana State Marine and Fire Insurance Company, at the rate of #500 for each share, the stockholders thereof being relieved from
And it is also shown that divers communications were had in April, 1835, between Wm. Yanc.e, and the president (John K. West) of the old company, in relation to the claim ; and that in May, 1842, some propositions of compromise were made in Yance’s name by Mr. West, and declined on the part of the commissioners of the new company.
Without its being necessary to examine thoroughly the question, whether the attorney of the company had any authority to file an answer, even under the instructions of the president and directors, after the expiration of its charter, and to proceed immediately to the trial of the suit, if such had been the case, without its being revived against the stockholders, we are of opinion that the proceedings had subsequently in the said suit, and the judgment rendered in June, 1844, were irregular and illegal, as there was then no party defendant with whom said suit could have been contradictorily tried and decided. The company'-, by the expiration of its charter, had lost all authority to appear in court and stand in judgment. It had become incapacitated in its collective name to defend the interests of the stockholders, who, by the 16th section of the charter had, at the time of its dissolution, become responsible in their individual capacities to the extent of their respective shares, in any suit then pending, or to be brought after the said dissolution, for the payment of all debts previously contracted by the said company. It was then the duty of the plaintiff to cite the stockholders against whom he intended to exercise his recourse under the charter, and to ma.ke them parties defendants; unless he chose to avail himself of the transfer of the stock made to the new company, and to call the latter to defend the suit, under the responsibility it had assumed in the act of transfer. The plaintiff did not think proper to do either; but after having permitted his action to lay dormant for the space of nine years, he proceeded, ex parte, to the trial thereof, and obtained the judgment which he now seeks to man-
Now, art. 606 of the Code of Practice, informs us, that a judgment can be annulled, when it has' been rendered, even contradictorily, against a person disqualified (qui n’avail pas capacité), by law from appearing in a suit, and when the defendant has not been legally cited. Here, the company had been disqualified bylaw. It could no longer appear in the suit. The answer filed in its name could not be considered as having any such legal effect on its capacity as to enable it to defend the suit after the dissolution of the charter. The stockholders were not cited; and it seems to us clear, that the judgment complained of, even supposing it to have been pronounced contradictorily with the old company, under the issue joined on the 5th of May, 1835, is illegal and void, and that the injunction ought to be maintained and perpetuated.
Judgment affirmed.