Succession of Andrew , 16 La. Ann. 197 ( 1861 )

Merrick, C. J.

On a rule taken by George Jonas, receiver, on Charles Maes.

The late firm of Andrew & Sierau was dissolved by the death of Andrew. Sierau was appointed by the court the liquidator of the partnership affairs. Subsequently he entered into' a new partnership with the defendant in the rule and one Wench, under the name of Andrew & Sierau.

The new firm, instead of providing themselves with new boolrs, employed those in the hands of Sierau, the liquidator of the old firm, and made their entries and kept their accounts therein.

Sierau having died, and the affairs of the old firm being still in an unsettled condition, George Jonas was appointed receiver. He applied to the defendant, Maes, for the books of the old firm, the same being in Ms possession. They were refused him by Maes on the ground that they were essential to the business of the now firm. Maes offered, however, to give him access to the books at all reasonable hours. The receiver insists that possession of the books and papers of the old firm is essential to a proper discharge of his duties as receiver.

Jonas suggesting to the Court his belief that Maes had the books in his possession, took a rule on him to show cause why he should not deliver the books, papers, property, &c., of the firm of Andrew & Sierau to him. This rule was dismissed on the 26th day of January, 1860.

A new rule was subsequently taken on grounds very similar to the preceding.

To this second rule Maes pleaded, among other defences, the dismissal of the former rule as the thing adjudged in bar of the second rule. The judgment of ■the lower Court being adverse to Maes on the second rule, ho appeals. He urges the plea of res judicata as the first ground of defence in this Court.

We are of the opinion that a mere dismissal of a rule cannot have any greater effect in the Court before which the same has been rendered than a judgment of nonsuit. See 9 Martin R. f>22. Nothing, therefore, prevented the receiver from renewing the rule.

On the merits we are of the opinion that the books, papers, &c., while in the hands of Sierau as liquidator of the partnership of Andrew <& Sierau, were in the quasi custody of the law, and that the new firm had no legal right to use the books for their own purposes. As a consequence, they, the books, papers, &c., are subject to the control of the Court, and must be restored to the present receiver, who acts under its authority. It may be true that the books contain entries important to the business of the defendant; if so, he must content himself 'with the examination of the books, and by taking copies at reasonable hours while they are in the hands of the receiver, whose possession is also that of the law.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower Court be affirmed ; that the appellant pay the costs of appeal, it being understood that the defendant’s right to examine the books in the hands of the receiver at all reasonable hours is reserved him by said decree.