Blanchin & Girard v. Martinez ( 1866 )

Labatjve, J.

An account having been rendered by H. Martinez, in this case, it was opposed by Blanchin & Girard, the appellants. They allege, in substance, in their opposition, that they are creditors for $339 98, with privilege on a certain sum of $499 60.

That the said curator has ignored their claim, and failed to put it at all on the tableau ; that they are entitled to be put on said amount as privileged creditors; that their privilege is anterior to any others, on the proceeds of the property attached and sold. They also oppose the charge generally in said account, and particularly the law charges, auctioneer’s bill, commission of sale, etc., as being exaggerated and unwarranted by law; and they say that the said claims are not to be paid out of the funds arising out of the sale of the property attached.

Wherefore, they pray that their opposition be admitted, and the tableau herein filed be so amended as to place the claim of opponents on said tableau, filed by Martinez, for said sum of $339 98, with interest and costs, as a privileged one, and that it be ordered that the same shall be paid in preference to any of the creditors of said Juvenal, out of the proceeds arising out of the sale of said property so attached.

The curator answered the opposition by a general denial, and pleaded prescription.

The lower Court sustained the plea of prescription, and dismissed the opposition.

The said opponents appealed by petition, and prayed for an appeal to this Court, and that Mr. Hypolite Martinez, curator, aforesaid, be cited to appear before this Court and answer the said appeal. The curator alone, and no creditor, was cited.

The curator and appellee now moves to dismiss this appeal, on the ground that the creditors placed on said tableau of distribution, opposed by the appellants, and who have an interest in maintaining the judgment appealed from, have not been cited.

It is clear that the creditors whose claims are opposed, and to whom the opponents claim a preference over certain funds, have a direct interest in the judgment appealed from, and not being parties to this appeal, the correctness.of that judgment, which is virtually in their favor, cannot be inquired into.

The motion must prevail. 17 An. 302, 74.

It is therefore decreed that the appeal be dismissed, at the cost of the appellant.