1 Rob. 525 | La. | 1842
Lead Opinion
This case comes before us in a very imperfect state. The plaintiff, who seeks to set aside a sale of certain goods, which he alleges was made by one of the defendants to the other, in fraud of his privileged rights, prayed that both his debtor and Breisgass, the vendee, might be cited, that a writ of sequestration might be
It is perfectly clear, that this action, which is one to revoke a contract made in fraud of the rights of a privileged creditor, could not be exercised against Breisgass alone, since the debt claimed by the plaintiff, had never been liquidated by a judgment; and it was necessary, in order to reach the plaintiff’s objects, that both the parties against whom the fraud is alleged, should have been represented in the suit. Civil Code, arts. 1967, 1970, and 1971. It is true, that the plaintiff, in his petition, prayed that his debtor might be cited, and it must have been a great oversight on the part of his counsel, to have proceeded to' judgment, without having the defendant, Harman, legally represented. We. think, however, that the justice of the case requires that it should be remanded.
It is, therefore, ordered, that the verdict be set aside, and the judgment of the District Court be reversed ; that this case be remanded for further proceedings ; and that the plaintiff and’ appellee pay the costs in this court.
This opinion was delivered, March 30th, 1840.
Rehearing
Same Case — Re-hearing.
A re-hearing has been granted in this case, on two questions :
First. Whether this court can take cognizance of the appeal, after it has been dismissed by the District Court because of the insufficiency of the security on the-appeal bond.
Secondly. Whether it was necessary to talcs a judgment against Harman, or to make him a party, previous to obtaining a judgment against Breisgass.
Upon the first point, it has been often decided, that after an appeal has been taken, and bond and security given according to law, the inferior court has no further cognizance of the cause, than to send up the record. 4 La., 205. 7 Ib., 448. 9 Ib., 49. In this case, an agreement as to the security was entered into by the parties. It is not shown, that it has been violated in any respect; and the
Upon the second point, we are of opinion, that our judgment was correct, as it does not appear whether Harman was solvent or not. It may be, that he is able to pay the debt claimed. If so, no injury has been sustained by the plaintiff. His debts were not due at the time of the sale from Harman to Breisgass, and if the former should he legally pursued, it is possible that the notes may he collected, without interfering with the sale in question. It may he, that the sale was intended to defraud the plaintiff; hut if he sustains no injury by it, he has no right to annul it. All the parties should be before the court, either in person, or by their legal representatives, to enable us to do justice among them.
We therefore see no reason to change our former judgment in the case.