Girod v. His Creditors

The judgment of the court -was pronounced ‘by Rost, J. The executors of Nicholas Girod have appealed from a judg- ment homologating a tableau of distribution filed by the syndic in this case, anil sotting aside their claim to compensate tho sum of ¡$2.807, being the amount of five promissory notes subscribed by the insolvent in favor of Nicholas Girod, in 1833, against an equal amount of the share of the insolvent in the succession of Claude F. Girod, for which the appellants are bound to account, under the decree of the Supreme Court of the United States in the case of Michou et al. v. Girod et al., 4 Howard’s Rep. 503. The claim of the heirs of Claude F. Girod was for real estate, and cannot be compensated with sums of money due on promissory notes. C. C. 2205. Tlie claim of the executors of Nicholas Girod is in the nature of a reconven.tional demand, tending to establish compensation, and affecting in no manner the rights of the insolvent under the judgment of the Supreme Court of the United States. Reconventional demands are not exceptions within the meaning of the rule Qua temporalia, as contended by the appellants. If the laws of prescription could be evaded, by thus disguising principal demands, those laws would become in most cases inoperative. The only exceptions to which the rule Qua !temporalia applies, are those which are attached to the action and inseparable [548] from the demand. They must, in the language of commentators, he visceral. 2d 'Propiopg. Prese, no. 833. More than five years had elapsed after the maturity of those notes when the insolvent failed; .and the fact that he placed them on his hilan cannot affect the rights of .the other creditors in the fund to be distributed. They may plead prescription, if .he does pot. C. C. 342.9. The .appeal in this .case was n.ot granted in open court, and none but the parties .cited are presumed to have had notice of it. The only issue formed before ¡this co.ur.t, is in relation to the .claim which we have already considered; and although any ,of the .parties cited may copie into .court .and ask that the judgment be amended in relation to that claim, they cannot do so for the purpose of litigating the .claims ,of creditors not made parties to the appeal, or of establishing .claims rejected by the .court .below, and having no .connection with that of the appellants. Tire error which has produced this confusion, arises from .considering the decree homologating the tableau as .one entire judgment, whilst it is in reality copip.osed .of many distinct adjudications, one of which only is appealed from. The dispositions of art. 592 and 888 of .the .Code of Practice are exclusively applicable to cases ip which pH the parties have been cited, and all the issues made in the first instance are appealed from. In a case lately determined .all the parties but one were b.efor.e us, and, as the ¡appeal had been taken by motion, we held that this party had notice of it, and should be considered as an appellee within the intent .of the articles of the Code of Practice. The opposing creditors ip this case cannot be so considered, beyond the single issue appealed from. In the general administration of the effects of the insolvent, the syndic rer presents the .creditors; hut ip the concurso, the creditors act ip their own names. The decision of the .court upon .each claim is .a separate judgment, which belongs to the party in whose favor it is rendered, .and which .cannot be disturbed on appeal, unless .that party be cited- The sypdic may undoubtedly appeal from .the judgment rendered upon any one claim, .and litigate it with the holder; if he does n.ot, .other creditors may. But if neither the syndic nor any,of the creditors appeal, the parties are not properly before us, apd we .cannot adjudicate upon their rights. The yery object .of the proceeding in .concuno would be defeated, if, after the credit.orshad.e.stablishedtheir claims contradictorily with each other in the first Instance, those claims could be .adjudicated upop, ex parte, in the last resort. The parties before us have taken this view of the law, as they have pot deemed •jt necessary to make the syndic a party to the appeal. In cases like this, parties considering themselves aggrieved by a judgment, jnust appeal, and make proper parties. It is our endeavor to foster liberality in ¡the professional intercourse of the bar, but we d.e.em it a duty to discourage Io,os.epes,s of practice, on .all proper occasions. /udgment affirmed,