39 La. Ann. 362 | La. | 1887
Lead Opinion
On Motion to Dismiss.
1st. That the clerk’s certificate is insufficient because it does not recite that the transcript contains “ all the evidence adduced on the trial.”
2d. The transcript is incomplete because it contains no note of evidence, no statement of the facts proven on the trial, and no bill of exceptions, nor assignment of errors filed in this Court.
An examination of the record discloses that the appellant was only, constructively,- a party to the record by newspaper publication of notice, and that he did not actually participate in the trial of the account and tableau of distribution.
Hence his appeal is to be viewed rather in the light of one taken by a third party resting his pietensions to relief upon the face of the papers, the correctness of which he concedes in point of fact, but the legality of which he puts at issue.
“Although a case, the transcript of which comes up without the evidence or any statement of facts, cannot be examined on the merits the court will consider and decide the questions of la/w presented by bills of exception.” 7 La. 173; 12 La. 415; 12 Ann. 332.
Under this view of the case, we have chosen to disregard the technical insufficiency of the certificate suggested — a fault not attributable to .the appellant — and proceed to the examination of the case.
Motion to dismiss overruled.
Opinion on the Merits
On the Merits.
The principal contention of the appellant is that the $1000 allowed the minor child of the deceased, who ivas at his death, in August, 1885, left in necessitous circumstances, is largely, if not entirely, taken from the proceeds of the sale of the interest of the deceased in the planting-partnership of Embry & Pilcher, of which he was a creditor for a large sum, with privilege and right of pledge upon the assets thereof.
Tt is shown, as well as conceded, that in any event the succession of the deceased is insolvent for a large amount.
His argument, predicated upon these facts, is that the judgment of homologation is erroneous in allowing the $1000, thus withdrawn from a fund that should be exclusively applied to the debts of the partnership, and only the surplus applied to debts of the deceased. He insists that from the total proceeds of Pilcher’s half of the partnership crop and movables, $7,287.11, he should be paid by preference over all other
Deducting his privileged claims “from the total process of Pilcher’s half of the crop and movables, there remains a balance of $1,064.58,” which appellant insists the court should have applied to the settlement of Pilcher’s half of the ordinary debts due by the planting partnership of Embry & Pilcher.
The appellant further complains that no tutor had been appointed to represent the minor, and that the act of the administrator in making the allowance in favor of the unrepresented minor was. a purely gratuitous one, and was only resorted to in, order to diminish the amount he would recover. In support of this theory he cites R. C. C. 3252, which is to the general effect that “ the widow or legal representative of the children shall be entitled to demand and receive from the-succession of the deceased husband or father * * $1000, etc.
I.
Considering the latter proposition first, it is sufficient to say that we undertook the examination of this case .upon the theory that the appeal only presented questions of laxo, and that the facts set out in the account and tableau contested appeared to be conceded.
We must presume in such case that the judge a quo had before him sufficient evidence to justify the-judgment rendered. This has become a familiar rule of construction. 26 Ann. 734, 148; 24 Ann. 20; 23 Ann. 504; 22 Ann. 118.
In the absence of proof to the contrary, we cannot assume that any fact essential to the validity of the judgment was wanting on the trial in the lower court.
In Nugent vs. Stark, 34 Ann. 631, this Court said: “It is no fault of the,appellee that the íecord does not contain the evidence which the judge says was heard.”
“She was not bound to have it taken in writing. The appellant, under the law and the jurisprudence, should have secured a statement of facts before- appealing.’’
II.
In support of his theory that partnership funds cannot be applied to the claim of Hie necessitous minor, and the commissions of the administrator, because they are, by law, consecrated to the payment of the debts of the partnership, which is insolvent, he cites Succession of Stauffer, 21 Ann. 520.
In that case the claim for $1000, Set up in favor of the necessitous widow and minor, was denied under very like circumstances to those
In Smith vs. McMicken, 3 Ann. 322, the Court said : “The partnership once formed, and put into action, becomes, in contemplation of law, a moral being, distinct from the persons who compose it. It is a civil person, which has its peculiar rights and attributes. * * * * Hence, therefore, the partners are not the owners of the partnership property. The ideal being thus recognized by a fiction of law is the owner ; it has the right to control and administer the property, to enable it to fulfill its legal duties and obligations; and the respective parties, who associated themselves for the purposes of participating in tl.e profits which may accrue, are not owners of the property itself, but of the residuum which may be left from the entire partnership property, after the obligation of the partnership are discharged.” 33 Ann. 1128, City vs. Ganthreaux.
In the Succession of Cason, 33 Ann. 790, this Court, having under consideration the claim of the widow of the deceased for a similar allowance of $1000, maintained the principle announced in Succession of Stauffer, citing it.
It is true that the Court, in that case, allowed the claim against mortgage creditors of the community; but the decree rested upon the theory that “the community of property created by marriage, is not a ' partnership.” R. C. C. 2807.
It does not matter that effects under consideration were those of an ordinary partnership, and that the one-lialf interest therein of the deceased, passed under administration for settlement. R. C. C. 1144, 872.
R. C. C. 2823 provides: “The partnership of property is liable to the creditors of the partnership in preference to those of the individual partner; but the share of any partner may, in due course of law', be seized and sold to satisfy his individual creditors, subject to the debts of the partnership.’’
This article would seem to be in conflict writh the provisions of R. C. C. 3276, which' is as follows, viz :
“The charges against a .succession, such as funeral charges, law charges, lawyer’s fees for settling the succession, the thousand dollars secured in certain cases to the widow', and minor heirs of the deceased and all claims against the succession, originating after the death of the
The seeming conflict between the two articles grows out of tiie idea that2>artnership debts are the debts of the deceased.
The partnership is a “moral being, distinct from the 2>ersons who compose it,” not alone as regards the ownership of the partnership 2>ro2>crty, but as regards the creation of, and liability for the partnership debts.
Hence money cannot be withdrawn from the funds of an ordinary 2>artnership for the purpose of satisfying the claims of the necessitous minor.
The administrator of the succession of Pilcher was entitled to the custody of them for the sole purpose of disbursing. them according to law.
It is therefore ordered, adjudged and decreed that the account tiled by the administrator be amended, and the claim and demand of $1000 in behalf of the minor be rejected and disallowed; and it is further ordered, adjudged and decreed that the account in all other respects bo approved and homologated at appellee’s cost.
Judgment amended.
Mr. Justice Todd dissents and reserves the right to iile his opinion hereafter.
