Goodale v. His Creditors

Martin, J., delivered the opinion of the court. This case comes before us on the appeal of Andrew Hodge, jr., an opposing creditor, from the order of the parish judge, homologating the proceedings of the creditors of the insolvent, before the notary, in the appointment of syndics. He opposed the proceedings and the appointment of syndics on various grounds, and urges in this court that the homologation was untimely, and therefore illegal, and should be set aside. Where the meeting of creditors for the appointment of syndics closed on the 9th of July, and an opposition was filed"by a creditor on the 22<1 of the same month, to the appointment of one of the syndics, and alleging various grounds of error in the proceedings : Mdd9 that as ten entire days had expired 'in the interim, after deducting Sundays, the opposition came too late. It is required of creditors who oppose the appointment of syndics, on the ground of illegality in the proceedings, to file their opposition within ten days next following the appointment, counting from the day the proceedings closed before the notary. The deliberations of creditors in the appointment of syndics becomeabsolute, without being homologated, after the lapse of ten days from that on which the deliberations closedbefore the notary,unless set aside by a timely opposition. 1. The counsel for the appellant contended that the opposition was filed in due time, and should have been received. 2. That the proceedings appointing syndics must be homologated in open court, and does not become definitive and complete by the mere lapse of time. 3. That the proceedings before the notary are void on the face of them. 4. That all judgments must be entered on the minutes of the court. 5. That the days on which there is no court, are not to be reckoned as part of the time within which the opposition of a creditor is to be filed. 6. That the opposition was in time, as no judgment of homologation had been pronounced, and an opposition had been made within the ten days, and had not yet been acted on. The meeting of the creditors for the appointment of syndics was closed the 9th of July, and the opposition, was filed on the 22d of the same month: between these two periods, twelve days intervened: deducting two days for Sundays (more could not have elapsed) and ten entire days expired in the interim. The opposition was, therefore, filed after the expiration of ten days allowed by law. I. The 18th section of the insolvent law of 1817, 2 Moreau’s Digest, 429, requires creditors who deem it necessary to oppose the appointment of syndics on the ground of illegality in the proceedings, to file their opposition within-ten days next following the appointment. It is, therefore, clear, that the opposition filed in this case, came too late. II. The 17th section of the above act provides that it shall no longer be necessary to have the deliberations of the creditors in the appointment of syndics homologated. From this provision it clearly results that the appointment of syndics by the creditors becomes absolute, after the lapse of ten days from the day on which their deliberations are closed, unless it is set aside by the timely opposition of a creditor, which [129] must be filed within the ten days allowed after the meeting of the creditors is closed. . ors in the apsyndicate void "i>on tlieTir face> t|ley Can ]laye nQ effect; and no uonisneeessaryl The <i°es not require that the ten days, oppoTitiontoflie appointment of syndics must be filed,_ should be 3udiaal daysIII. If the proceedings of the creditors be void on the face of them they cannot have any effect, and the rejection of the opposition of the appellant will not render them legal and binding. IY. As regards the entry of judgment, it follows from what has been already said, that if no judgement of . JO homologation is required since the promulgation of the Code of Practice, consequently in the present case none was rendered or required to be rendered. Hence no judgment of homologation could be entered on the minutes of the court.. Y. The insolvent act of 1817, already referred to, does not • ^ i i • i • i-ii • • , _ , require that the ten days, within which the opposition should be filed, must be judicial days. But in this case it is not alleged, nor is it shown that the opposing creditor had not ° . rr ° ten judicial days within which to make his opposition. The record shows that the court was sitting, after the proceedings before the notary were closed, and before and after the day on which the opposition was filed. The presumption, therefore, is strong that the July term of the court did not close until after the opposition was filed. YI. The fact that the timely opposition had been made by another creditor, did not authorise the filing of the opposition of the appellant after the expiration of the legal delay. Neither of the applications could have been followed by a judgment of homologation, because none was necessary. If an opposition made in due time appears groundless, the judgment is, that it be rejected, not that the appointment of the syndics be homologated. If it is shown that the opposition is well founded, judgment must be rendered setting the appointment aside. Both these judgments must be pronounced on timely oppositions. It is true that when the neglect or omission to make an opposition or an application, brings with it as a consequence, some act of the court, or the party; as a judgment by default, or the like; the party may avert this consequence before the act be done. But in this case the law required the application to be made within [130] a given delay, and the consequence of neglect is the rejection of the application; the delay is fatal. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish. Court be affirmed, with costs.