Fulton's Heirs v. Administrator of Curtis's Heirs

Martin, J. delivered the opinion of the court. The heirs of Pulton and Thomas, are appellants from the judgment of homologation of the tableau of distribution. Thomas complains that interest is allowed on various debts, not properly bearing interest in the curator’s hands. As to the sums due by the curator himself, he owes interest as curator from the day of his appointment, if they were previously due; otherwise only from the day of payment. As to the sums he received from the debts of the estate, he owes interest from the day they came to his hands, unless he shows he put them out at interest, soon afterwards. The calculations of interest, appear to have been made on correct principles, and therefore the complaint was properly disregarded. Pulton’s heirs complain that their claim was improperly reduced on the application of Sollibéllas; but the appellee urges that this claim is passed into the authority of res judicata. The syndic filed the tableau, which was opposed by Sollibéllas, and a special judgment rendered sustaining the objection in part, and the amount fixed by this judgment, was carried on the tableau; and the present appeal is taken from the judgment of homologation. It is objected, the appeal should betaken from the specialjudgment on the opposition, and not from the general one of homologation. We think, it ought to have been taken from the first, which was rendered contradictorily between the party alleging himself to be injured, by the syndics, the proper representa- I tives of those against whom relief was sought. The doctrine on this subject, will be found in the case of Saul vs. his Creditors. 7 Martin, N. S. 446-47. The first judgment should have been appealed from; I otherwise it may be incidently re-examined by all the creditors I separately. [195] It is clear, the judge in acting on the final tableau of distribution, could not have taken any other datum, for the amount due to this particular creditor; but that already fixed by the special judgment, and if this be so, the merits of that judgment, cannot be gone into on an appeal from the judgment of homologation, for the first judgment has the force res judicata, so long as it stands unreversed: And the judgment reversing that of the homologation, Avould still leave the former untouched. It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.