Ulman & Co. v. Briggs, Payne & Co.

The opinion of the Court on the motion to dismiss was delivered by Marr, J. Final -judgment in this case was signed on the 25th May., 1878. On the 13th May, 1879, plaintiffs filed a petition for a devolutive appeal, which was granted, returnable on the third Monday, the 19th of May. The transcript was actually filed on the 20th May. In their petition of appeal plaintiffs prayed for the citation of defendants, and gave their names in full. It appeared of record in the» original petition, that all the defendants were residents of New Orleans* and they were all cited personally to answer the demand. All the ap-pellees were cited to answer this appeal, except James M. Lewis ; and on the 20th May appellants obtained an order of this court, continuing-the cause to the 15th December, on the ground that Lewis had not been, cited because of his absence from the State. We find filed with the transcript two citations of appeal addressed, to Lewis, and served on him personally, one issued on the 28th October., served 8th November, the other bearing date 15th December, which according to the return was received by the sheriff on the 15th November and served on the 18th November, 1879. The first of these recites that the appeal is returnable on the third Monday of May, 1879, and the-other that it is returnable on the 15th December, 1879. Lewis moved to dismiss the appeal as to him, for want of proper citation ; and because more than a year had elapsed after the signing of the judgment, before the service was made. He alleges that these defects are attributable to the fault of appellants. 1. We have followed the decisions of our predecessors, that where [657] •the appellant prays for citation in his petition of appeal, the failure of the clerk to issue it, or of the sheriff to serve it, will not be attributed to the fault of appellant, without proof of some act or omission on his part which prevented the performance of their respective duties by these officers. In such cases the appeal will .not be dismissed ; and time will be granted to have the appellee cited. See Borde vs. Erskine, 29 An 822 ; Hearing vs. M. C. Ins. Co. 29 An. 832. An authentic act of partnership being passed between several persons, in which it is expressly stated that one of them enters the partnership and is accepted as a partner in commendam; that he advances a fixed sum of money, receipt of which is acknowledged; that he is exonerated from participation in the exi)enses and losses of the concern, and, in lieu, of a proportion of contingent profits, is to receive monthly afixed per ceatago on thegross .sales made by the firm; And such an act being recorded at the Mortgage Office, in a book known and marked as the. “ Society and Partnership Book: ” IIei/d that it is a sufficient compliance with the law relative to the partnership in oom-mendam, to protect such a partner from the obligations of a general partner. A partner in commendam, consulting once with one of the general partners, and advising third persons that the firm is “all right,” cannot be considered as having taken an active part in the affairs of the firm and be held responsible for its debts. Ogden & Buckner, A. Goldthwaite for Plaintiffs, Appellants : The Defendant, James M. Lewis, cannot legally pretend to have been only a partner in commendam, because : First — The very day the partnership was formed and he paid in the $20,000, which constituted his share of the capital, lie took back $8196 out of it, as a debt previously due him, by the firm. Second — The act of partnership stipulated that he should receive monthly in lieu of profits one half per cent of the gross sales of the firm. Third — The act was not recorded, as the law requires, in the Mortgage Office in a separate book, but in one kepi for recording acts of in-corporations, copartnerships, religious an 1 charitable associations* Fourth — He took an active part in the affairs of the firm. 2. In Boutté vs. Boutté, 30 An. 181, on the authority of Borremire’s case, 10 La. 150, and upon our interpretation of article 593, of the Code of Practice, we decided that the law which limits the right of appeal to one year after the date of the judgment does not require the appellee to be cited within the year. The appeal must be demanded, and the bond must be given and filed before, but the appellee may be cited after the expiration of the year. The motion to dismiss is, therefore, denied at the costs of the mover.