Grayson's v. Norton , 33 La. Ann. 1018 ( 1881 )

The opinion of the Court was delivered by

Levy, J.

Franklin Garrett, dative testamentary executor of David Y. Grayson, deceased, instituted this suit on the 15th of August, 1876, to revive a judgment of the District Court of Jrankliñ Parish, rendered ■on the 6th of September, 1866, in favor of said Grayson vs. E. S. Sims. The suit was brought against E. E. Nprton, assignee in bankruptcy of ■•said Sims. Service was duly made on said Norton. William Bonner intervened, alleging that in May, 1870, he became the purchaser from E. E. Norton, assignee in bankruptcy, of all the real estate of E. S. Sims, which had been surrendered in bankruptcy by said Sims, said purchase 'being made under an order of sale bf the U. S. District Court of Louisi•ana. Intervenor avers that, although said “order .of court and sale decreed the divestiture of all mortgages and incumbrances on said •property, the plaintiff has brought suit against intervenor, claiming the right to enforce upon said lands the judicial mortgage alleged to have been acquired by the registry of the judgment in the suit of Grayson vs. E. S. Sims.” He alleges, among other things, that the said Norton has no interest in the present suit for revival, because, at the time of •filing the samó, he was not assignee of said bankrupt, having filed his final account and been discharged from said office. He also alleges that Norton was-not properly cited; that “the prescription of a judgment •can be interrupted, only, by a legal citation issued according to law to the defendant or his representative, which has not been done in this case.”

There was judgment of the District Court, reviving the judgment •as prayed for, and the intervenor appealed to the Supreme Court and the judgment of the lower court was reversed and the case remanded •for a new trial. On the second trial, there was judgment rejecting ■plaintiff’s demand .and sustaining the intervention,'and plaintiff has "taken this appeal.

In the opinion rendered by the Supreme Court, in the first appeal, "the Court said: “ In this case, it was brought against the assignee; and the vendee of land subject to the judicial mortgage resulting from the ¡recordation of the judgment sought to be revived, has therein intervened, and we have before us the parties who alone are interested in maintaining or defeating this action.” We shall, therefore, consider •alone the question of the revival of the judgment, having nothing to do with the conflicting interests of the plaintiff and intervenor as to the force and effect of the judicial mortgage.

The whole ease was reopened on the second trial and evidence introduced thereon, which was not taken on the first one. We find in the record evidence showing that E. E. Norton, assignee of the bankrupt E. 8. Sims, was discharged as such assignee by order of the TJ. S. District Court, sitting in bankruptcy, on the 20th of January, 1872. Service of the citation in this suit was made on him on the 15th of August, 1876, more-than four years after his discharge.

In the opinion of the Supreme Court, rendered on the rehearing granted in the previous appeal, the Court said: “We held that, in this, suit, the citation should have been issued to and served upon the judgment debtor or his legal representative, reversed the decree of revival and dismissed plaintiff’s demand. We are now told by his counsel, ‘in-instituting these proceedings we carefully followed, as the evidence-of what the law was, a rule established and twice sanctioned by your predecessors.’ This is true, and as members of the Bar, we understand the important necessity of not departing from a rule of practice, which,, however questionable it may be, has for several years been a guide to-litigants. 25 An. 556, 27 An. 242. Plaintiff is seeking, not to avoid the-effects of any obligation, not to destroy any right, but merely to protect-against an impending prescription, a right which, he alleges to have acquired; and to attain that lawful end, he has strictly complied with the-formality prescribed by our jurisprudence, and which, he justly contends, it is too late to alter or change. Whatever may be the views which we entertain as to this matter, plaintiff has properly invoked the rule stare decisis and, as in this instance, no interest can be affected by its application, we adhere to it.”

The decisions on which the Court relied, 25 An. 556, and 27 An. 242, do not, in our opinion, apply to this case. In those cases, it does- not appear, nor is it claimed, that the assignee had been discharged and was “functus officio,” and the facts disclosed by the record of the first-appeal herein, doubtless induced the belief in the mind of the Court, that Norton was, when cited, assignee. The proof of his discharge was not before the Court and, indeed, it was only made on the new trial, for which purpose the cause had been remanded.

The question, then, for our decision is: was the service on Norton, long after he had ceased to be assignee of the bankrupt, Sims, by discharge under an order of court regularly made, such legal citation-“to the defendant or his representative” as would maintain a judgment of revival? Without, in any manner, overruling the cases cited, we-only say, that they do not cover, nor are they applicable to, the instant cause.

Plaintiff, relying upon the decisions referred to as constituting a-rule of practice justifying him in applying thereto the doctrine stare decisis, can find no relief therefrom. They held that service of the citation on the assignee in bankruptcy was sufficient in a suit to revive a judgment against a bankrupt debtor, but they did not say that service upon one not an assignee at the time of service, or who had, although once an assignee, been judicially discharged, would suffice. In this -case, when the service was made upon Norton, he was in no manner the ■representative of the judgment debtor. He had long since, by solemn adjudication of the proper court, been divested of. all representative •character as it affected the bankrupt or his estate, and was to all intents and purposes a stranger, without capacity to do any thing which could bind the bankrupt or his property. A citation on him had no more binding effect than if made upon the veriest stranger.

We know of no law and no decision which would authorize an executor, administrator, curator or tutor, or other fiduciary, to exercise the functions of his office after he had been divested of his official character, which could bind the persons or property which he had represented prior to such divestiture of his office; and so also as to assignees in bankruptcy. The service of the citation on Norton, the discharged assignee, in this case is insufficient on which to base a judgment for the revival of the judgment sought by plaintiff.

The judgment appealed from is, therefore, affirmed with costs.

Mr. Justice Todd recuses himself, having been consulted as counsel.