Latting v. Fassman, Bryant & Co. , 29 La. Ann. 280 ( 1877 )

The Opinión of the court was delivered by

Wxly, J.

Plaintiff brought this suit in March, 1807, for the partition of the partnership existing between plaintiff and clofendants for tlio manufacture of bricks. In February, 1869, R. G. Latting was adjudged •a bankrupt and his estate assigned to E. E. Norton, assignee. In June, 1873, more than two years after his appointment, the assignee made himself a party to this suit. Thereupon E. It. Bryant, one of the defendants, excepted, on the ground that under the bankrupt act the assignee was barred by tlxc lapse of two years from instituting this proceeding or becoming a party to this litigation. lie also excepted to the litigation by Chambers, tlio alleged commondam partner of R. G. Latting, on the ground that ho was without interest, and could not interfere in this proceeding. The court maintained the exception and dismissed the suit.

E. E. Norton, assignee, and William Chambers, the alleged commondam partner of R. G. Latting, have appealed.

We think the court did not err.

The assignee permitted more than two years to elapse before making himself a party to the proceeding. By section 5057 of the Revised Statutes of tlio United States the suit could not be maintained by the assignee. Chambers, the alleged commendam partner of Latting, is wholly without interest to interfere in the settlement of the partnership for making bricks which was formed in February, 1862, between R. G. Latting and the firm of Fassman, Bryant & Co. The contract between Latting and Fassman, Bryant & Co. is in the record, and there is no authentic evidence that Chambers was a commendam partner of the partnership for the manufacture of bricks.

The position that before going into bankruptcy R. G. Latting conveyed to Chambers his interest in the partnership the settlement of which is the subject of review can not be maintained. Both before and after the bankruptcy he joined R. G. Latting in filing petitions in which he judicially admitted the interest of Latting and only claimed to bo a common-dam partner of Latting.

Judgment affirmed.