Ferguson & Hall v. Their Creditors

Martin, J. delivered the opinion of the court. The syndic is appellant in this case from a judgment sustaining several oppositions, and'making various amendments to his tableau. tRe" reversaíof ^hich^r^duces clflms on Ms tableau, and '«'lien he and ditors whom he aggrieved! are The syndic tarvnnt1 nloiivi So where a ¡greducedfrom °ne> a>M he peal, the synefie the moafof cre-béíelted^can-,not aPPeal ,or have the judg-xaeni altered. The parties have agreed that the judgment he affirmed as to the oppositions of Norris and Sorbe, and the claim of R. H. White ; and that it he reversed as to the claims of J. P. Ben- . . ]amin; and S. T. Hohson & Co. as to the amount of the latter, which are to he maintained. The decision of this court is solicited on the following points only-: 1. Whether the claim of R. M. Carter, Esq. is to he maintained at $500, or reduced to $250, as adjudged by the court. 2. Whether the claim of P. Cenas, auctioneer he maintained at $340 as placed on the tableau, or reduced to $15, as ■adjudged by the court. 3. Whether S. T. Hohson & Co. are ordinary or privileged ■creditors. 4. Whether J. H. Martenstein is an ordinary or a privileged creditor. I. & II. With regard to the claims of Carter and Cenas, the one attorney of the insolvents, and the other auctioneer • appointed to sell the surrendered property and effects, whose claims have been reduced, and who have not appealed, we are unable to see on what ground, the syndic seeks relief, as neither he or any of the insolvents’ creditors whom he represents, are aggrieved by the judgment of the inferior court. III. The same observations apply to the claim of Plohson & Co. who were reduced from privileged to chirographic creditors, as were made on the two preceding claims of Carter and Cenas. They might have sought relief at our hands ; and •they only, (not the syndic) for the reduction, if illegal wrought no injury to any one but themselves. To the mass of the creditors whose interests the syndic represents, it was beneficial; as it diminished a number of competitors, amongst the privileged ones, and increased the fund from which the others were to be paid. The syndic therefore had no right to appeal, as thereby he could only place the creditors in duriori casu, and charge them with the costs of a litigation worse than ° ° useless. A privileged claim of the vendor, will not be allowed on ldthS’ anU,Sold none’ of^ tiíem are identified. IV. As to Martenstein, the tableau was amended by taking him from the list of ordinary creditors, and placing him as a privileged one for $3800 with interest, &c. The counsel for the syndic has referred to the statement in the brief of the attorney of the creditors who oppose this claim. He states that the goods on which Martenstein claims his privilege had been sometime previously sold to the first firm of the insolvents and mingled with the stock of goods on hand, and which had been transferred from the firm of Ferguson & Hall to that of Ferguson & Cotte. That a witness states a quantity of goods were pointed out to him by the insolvents as having been purchased from Martenstein, and that he supposed that if the whole stock surrendered was worth $30,000, that this “old stock, said to have been bought of Martenstein, must have been worth as much as $3,000.” This circumstance, when it is considered that the business had been conducted by the ins°Nents for four years or more ; who were constantly selling all¿ buying goods ; added to the fact that in the inventory by , , , . , which the sale was made, not a single article is identified as belonging to Martenstein, and no witness produced to identify any Part goods, there can he no foundation for a privileged claim. The judgment, as respects the amount of the claims of J. P. Benjamin, and of S. T. Plobson & Co., having reduced these claims, and being- more favorable to the mass of creditors, cannot be the subject of complaint of the opposing creditors, because they have obtained what they asked for, and they claim no further deduction; nor of the syndic because it is his duty to support the judgment. It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed; except so far as it concerns the claim of J. H. Martenstein, and that it he reversed as to him: and ours is that he be re-instated on the tableau as a chirographic creditor, for the amount of his claim.