1 Rob. 535 | La. | 1842
This action is brought by the syndic of the creditors of Pierre Amirati, of the parish of Ascension, against Pierre Dubertrand and Henry Hopkins, former syndics of the estate, appointed in 1835, but subsequently removed from office in due course of law. The petitioner seeks to recover the sum of $33,500, which, he alleges, came into the hands of the defendants from the sale of the property surrendered by the insolvent. He also claims interest thereon, at the rate of thirty per cent per annum, from the time it was so received, on the allegations, that the defendants have never deposited the monies belonging to the estate in any chartered bank, as required by law, and that since they have been divested of their office, they have retained the same in their hands and refused to pay the amount over to the new syndic. The defendants, residents of New Orleans, excepted to the jurisdiction of the court, on the score of commorancy. This exception having been overruled, they answered, averring, that as syndics of Amirati, they received jointly certain monies ; but that they diligently discharged their duties according to law, and faithfully paid over to the creditors of the insolvent all the monies so received, according to a tableau, or account, which was filed by them in the District Court of the Second District, on the 10th of April, 1838. They further aver, that should the payments made by them, be considered irregular and illegal, they are subrogated to the rights of the creditors, whose claims they have discharged; and that they are legally entitled to
There was a judgment below against'the former syndics, each for one half, for $33,444, with ten per cent on said amount, and the costs incurred in effecting the appointment of the present syndic ; reserving to them their right of action against the petitioner, for the recovery of the amounts they may have paid irregularly to the creditors, for the benefit of the insolvent’s estate, as being subrogated to the rights of such creditors, with ten per cent thereon. The defendants appealed.
The judge, in our opinion, correctly overruled the plea of the defendants to his jurisdiction. In whatever parish his domicil may be, a syndic is always amenable to the court before whom the failure is pending, under whose authority he is appointed, and to whom by law he is accountable for his administration. If he has a different domicil from that of the insolvent, he waives his right to make any exception on that ground, when he accepts the appointment; and subjects himself to the power and supervision of the court, seized of the concurso1 But the defendants, it is said, are sued, not as syndics, but in their individual capacities, in order to make them liable for alleged misconduct. It appears to us, that it is in the capacity of syndics, that they are sued. The .object of the present action is to obtain the reimbursement of the funds they received as such, and the payment of a per centage, which the law inflicts on them as a penalty for their failure to comply with the duties of their office. This penalty, we apprehend, is to be pronounced by the court, under whom they hold their appointment, and before whom all the proceedings in relation to their removal have taken place.
It is next urged, that the court erred in refusing-to permit the defendants to introduce evidence, to show that they made payments to the creditors of the insolvents, which, although not sanctioned by law, should avail them. We do not think that the court erred. Independently of the illegality of such payments, the evide. them, even if admitted, would not have been binding and sive on the creditors, contradictorily with whom the claims to have been paid by the defendants, must be proved, as
If they should be entitled to be reimbursed for these payments, as we think they are, although not strictly legal, there would be great hardship in condemning them, in this suit, to pay to the new syndic the whole amount of the funds they received, together with a per centage thereon, when shortly after, this syndic, whose duty it would be to distribute the money without delay, would have to return to them the greatest part of it. There is some analogy between the situation in which the former syndics stand, and that of a
As to the penalties created by the act of 1837, we concur in opinion with the judge a quo, that they can attach only to cases arising subsequent to its promulgation, and that this case should be governed by the statute of 1817.
It is, therefore, ordered, that the judgment of the District Court be so amended, that no execution shall issue for the sum of $27,551 19, and the ten per cent decreed to be paid thereon, provided, that within thirty days from the filing of this decree with the clerk of the court below, the defendants give, to the satisfaction of the district judge, good and sufficient security to pay said sum, or such portion thereof, as it shall appear, on the final tableau of distribution to be filed by the new syndic, that they have no right to retain on account of sums paid by them to the creditors of Pierre Ami-rati; the plaintiff and appellee paying the costs of this appeal.