Levois v. Gerke , 12 La. Ann. 828 ( 1857 )

Cole, J.

Leváis and others, creditors of B. Gerke, acting under the provisions of the 6th Section of the Act of 29th March, 1826, obtaining a sequestration of all his property, and an order calling all the creditors to a meeting, jn order to appoint a syndic and liquidate his affairs.

Durand, Dortie and Laeapere, creditors of Gerke, who had obtained an at. tachment against his property, intervened in the proceedings, and in their capacity of attaching creditors, whose interests were injured by said proceedings, demanded that the same be set aside and quashed, on the ground, that the 6th section of the law of 1826 had been repealed by the statutes of 1855, relative to insolvency.

' The demand of the intervenors was sustained by judgment of the court below, and the plaintiffs now seek to have the said judgment reversed, on the ground, that the said 6th section is still in force, and this is the principal question for our present consideration.

The 6th section of the Act of 29th March, 1826, entitled “An Act supplementary to an Act entitled 1 An Act relative to the voluntary surrender of property, and to the mode of proceeding, as well for the direction, as for the disposal of debtors’ estates, and for other purposes,’ ” reads as follows :

“That if any merchant or trader abscond or conceal himself, in order to avoid the payment of his debts, it shall be lawful for three of his creditors or more to apply to any competent Judge, and after having made an affidavit, that the said merchant or trader has actually absconded or concealed himself, in order to avoid the payment of his debts or to he sued therefor, as well as of the specific amount of their respective claims, to obtain from the said Judge an order authorizing the sequestration of the property of the said merchant or trader, and that his creditors may be called to appoint syndics, who shall be put by the Judge in possession of the property of said merchant or trader, as by way of forced surrender; and, in such case, all the other formalities and rules prescribed by law, in matter of voluntary surrender of property, shall be complied with.”

At the time this statute was enacted, no law existed in Louisiana which empowered the creditors of a debtor who had fled from the State to seize his property and distribute it ratably among the mass of his creditors, and to carry into force, as to him, the provisions of the 8510 Art. of the Civil Code, which is as follows: “ The property of the debtor is the common pledge of his creditors, and the proceeds of its sale must be distributed among them ratably, unless there exists among the creditors some lawful causes of preference.”

Anterior to the enactment of this statute, a debtor could secretly-leave the State, and some favored creditors could attach his property and obtain a privilege by the attachment before the other creditors were even cognizant of his departure.

This statute was then indispensable for the safety of the commercial community, and supplied a void in the legislation of the State.

It provided for the disposal of the estates of debtors who had absconded, a mode different from, and independent of, the laws then in force for forced and voluntary surrenders.

The laws then in vigor for forced surrenders required, as an indispensable requisite for a forced surrender, that the debtor shall be in actual custody.

The laws then in force for a voluntary surrender required, among other formalities, that the debtor should present a petition to a competent court, praying for a call of his creditors."'

Section 6 provides a new mode of proceeding against a different class of debtors from the laws then in vigor for a forced or voluntary surrender.

It is true, that this section authorizes proceedings as by way of forced sur. render and voluntary surrender; but, as it authorizes to proceed partly by forced and partly by voluntary surrender, this shows that the Legislature contemplated a mode for disposing of the property of debtors who had absconded or concealed themselves, entirely distinct from the remedies then in being.

It should also be remembered, that under the Constitution of 1812, laws were not enacted distinctly with a title for each, but laws upon many distinct subj ects were embraced under the same general title.

By reference to the Act approved March 29th, 1826, it will be found, that sections 7 and 8 apply to successions; these sections are not, however, repealed by the repealing clause in the Acts of 1855, relative to insolvent laws, because they are not upon the same subject-matter, and there is nothing therein inconsistent with them.

Inasmuch as the insolvent laws of 1858 do not embrace the class of debtors referred to in section 0th of the Act of 1826, and as the subject-matter of the Acts in question of 1855 are voluntary and forced surrenders, and as said section 6th provides a mode different from either species of surrenders, and constitutes a distinct remedy, and as there is nothing in the laws of 1855 relative to insolvency which clashes with the provisions of this section, we are of opinion that it is not repealed by the repealing clause in those laws.

It is not now the time to decide on the rank of the attaching creditors or of those who have sued out the writ of sequestration; the rank and priority -of the different creditors will be fixed during the proceedings under the 6th section of the Act of 1826.

It is, therefore, ordered, adjudged and decreed, that the former judgment of this court in this case be set aside, and that the judgment of the lower court on the rule be avoided and reversed, and the rule be dismissed, and intervenors pay the costs of both courts.