Tua v. Carriere

The plaintiff in error brought this suit on August 18, 1884, on certain bills of exchange drawn by the firm of A. Carriere & Sons, on which he alleged there was due him the sum of $12,437. His petition stated that A. Carriere & Sons was a commercial firm, lately doing business in New Orleans, composed of Antoine Carriere, Emilie L. Carriere, and Charles J. Carriere; that Antoine Carriere had departed this life on June 4, 1884, testate, and that Olivier Carriere and Emilie L. Carriere had been appointed his executors. The petition alleged, as a ground for the issue of a writ of attachment, that the defendants had converted, or were about to convert, their property into money or evidence of debt, with intent to place it beyond the reach of their creditors, and prayed that the writ might issue against the property, goods, and effects of the firm of A. Carriere & Sons, and of Emilie L. Carriere and Charles J. Carriere; that said firm be cited, and the individual members thereof, Emilie L. and Charles J., and Antoine Carriere, through his testamentary executors, Olivier Carriere and Emilie L. Carriere, and, after due proceedings, that judgment be rendered in favor of petitioner and against A. Carriere & Sons, and change, 'with lien and privilege on the property attached.'

In accordance with the prayer of the petition, a writ of attachment was issued, and, as appears by the marshal's return, was levied on certain property and effects already in his custody on other writs of attachment. Afterwards one James M. Seixas filed his intervention and opposition in the cause, in which he averred that on July 18, 1884, the defendants, A. Carriere & Sons, made a cession of all their property to their creditors, in the civil district court of the parish of Orleans, which was accepted by the court for their creditors; that the petitioner was appointed by the court, and on August 21, 1884, was elected by the creditors and qualified as syndic of said insolvent estate, and as such had title and right of possession to the goods seized by the marshal, and that the property was not subject to attachment, and prayed that the attachment might be dissolved. Olivier Carriere, as executor of Antoine Carriere, joined in the petition and intervention of Seixas, and prayed for the dissolution of the attachment.

Emilie L. and Charles J. Carriere filed for themselves individually, and for the firm of A. Carriere & Sons, an answer, in which they averred that individually, and in behalf of A. Carriere & Sons, they had, on July 18, 1884, in the civil district court of the parish of Orleans, surrendered all their assets to their creditors, and the surrender had been accepted by the court and their creditors, and they prayed that the attachment might be dissolved. The plaintiff filed an answer to the intervention of Seixas, in which he denied that the latter was the syndic of Carriere & Sons; averred that the property attached was in the hands of the United States court, and that Seixas never had any control over the same, and had no right to disturb the possession of the United States court.

Upon the issues thus raised upon the original petition of the plaintiff and the intervention of Seixas, the case was tried by a jury, which returned a verdict for the plaintiff for $12,437.82, and that the attachment be dissolved. It appeared from a bill of exceptions taken upon the trial that evidence was given tending to show that the firm of A. Carriere & Sons was composed of Antoine Carriere, Emilie Carriere, and Charles J. Carriere; that Antoine Carriere departed this life on the fourth day of June, 1884, and Olivier Carriere was appointed his testamentary executor, and that Emilie L. and Charles J. Carriere, individually, and as surviving members of A. Carriere & Sons, took, on the eighteenth day of July, 1884, the benefit of the insolvent law of Louisiana, and filed schedules of their individual assets and liabilities and of the assets and liabilities of the firm of A. Carriere & Sons; that at the meeting of the creditors, J. M. Seixas was appointed and qualified as the syndic of Emilie L. and Charles J. Carriere, individually, and as surviving members of the firm of A. Carriere & Sons; that their creditors refused them a discharge, either individually or as surviving members of said firm; that said syndic was appointed prior to the attachment in this case, and that the attachment was levied subsequent to the refusal to discharge the said Emilie L. and Charles J. Carriere; that the attachment was levied on property already in the hands of the marshal by virtue of attachments issued prior to the eighteenth of July, 1884, and that said prior attachments were dissolved by the court on the day of the trial. Thereupon the court charged the jury that 'the cession shown in this case is made by E. L. Carriere and Chas. J. Carriere, individually and as surviving partoers of A. Carriere & Sons, and, by operation of law, carries into the surrender all their individual property and all the property of the firm, and that the effect of the cession and proceedings thereunder was to stay and practically dissolve all attachments then issued against the said surrendering partners, and all property surrendered in the state courts by direct operation of state laws, and in the national court by force of section 933, Rev. St.' The plaintiff excepted to this charge. The court gave effect to the verdict of the jury by rendering judgment in favor of the plaintiff for $12,487.82, and dissolving his attachment. Thereupon the plaintiff sued out the present writ of error to bring under review that part of the judgment of the circuit court which dissolved his attachment.

Charles Louque, for plaintiff in error.

T. L. Bayne, for defendant in error.

WOODS, J.