Hemphill, Hamlin & Co. v. Braun , 1 McGl. 326 ( 1881 )

On Motion to Dismiss.

Rogers, J.

The judges of the. district court, when granting orders of appeal, in fixing return days should be governed by the rules of this court; but the fact that a judge, in fixing a return day, as in the matter before us, passes the earliest day upon which a return should be made, and fixes a subsequent one, fault will not be imputed to the appellant, unless the facts are so brought to the attention of the court, that it can be properly ascertained and determined whether the order of court granting the appeal resulted from an error or fault attributable to appellant. The fact that the motion is in the handwriting of counsel, and the day of return written in the motion by counsel, is nevertheless an order of court when granted, and is the act of the judge. 31 La. An. 595, and dissenting opinion of Fenner, J.; 32 La. An. 696.

•A judgment refusing a new trial does not require the signa-, ture of the judge. No appeal will lie from such judgment. Therefore, when a judge, after refusing an application for a new trial, at once signs a judgment, the delays for appeal commence to run from such signing.

The judgment in this case was. signed on May 7th. The motion for appeal was in time, but the bond, which was filed on the 23d, could not suspend execution of the judge. The amount,, of bond herein, however, having been fixed by the judge, and furnished by appellants, the appeal will not be dismissed.

The bond declares the appeal is taken from a final judgment rendered in the Civil District Court iu the matter of Hemphill, Hamlin & Co. v. Max. Braun, against the plaintiffs. There can no dispute arise on this: the description is sufficient to permit a recovery.

Motion overruled.

On the Meeits.

Plaintiffs, residents of the State of New York, creditors of defendant, holding the notes of the latter, brought this suit for the recovery of the debt, obtaining a writ of attachment, by virtue of which the sheriff seized certain property. After the issuance of the writ, and pending the seizure, the debtor made a voluntary surrender of his property, under the insolvent laws of this State. The syndic of the insolvency proceeded by rule ..against plaintiffs for a stay of proceedings in this suit, for the release to him of the property attached, and for the cumulation of this case with the insolvency proceedings of Max. Braun. The plaintiffs resisted, on the ground that, being non-residents, the insolvency laws of this State could not affect them; that their attachment could not be disturbed, nor their proceedings stayed, or in any wise interfered with, by reason of any order rendered in said insolvency.

Rogers, J.,

after stating pleadings and facts : — These notes are dated in 1879. The congress of the United States, in 1878, had repealed the general bankrupt law, and the insolvent laws of this State, which had for more than ten years been suspended, revived. From the date of the notes until their maturity — to the instant of this suit — no change had been made in the laws of this State, which impaired either the rights of plantiffs, or remedies to secure those rights.

Insolvent laws were enacted for the Iramaile purpose of protecting honest'but unfortunate debtors; — “conceived as much in a spirit of mercy to the- debtor, as of justice towards the-creditors.” Plympton v. Preston, 4 La. An. 356.

And the power of the States to enact such laws, and to enforce them among their owu citizens, is no longer to be considered as questionable. 4 Wheaton 122 (419), Sturgis v. Crowinshield; 12 Wheaton 213, Ogden v. Saunders.

And the fullest consideration has been given the subject, in all its phases, by the highest judicial tribunals of the country,, and nothing, it may be said, is left to conjecture.' '

In the present case we are not called upon to determine whether plaintiffs have the right to insist on the fulfilment of' their agreements with defendant, and to proceed to judgment.. We are only to determine whether they have a right to pursue the remedies invoked by them in- the proceedings taken before one of the tribunals of this State — called upon to administer-the estate of a debtor for the benefit of all his creditors, a part of which estate had been attached on the complaint of this, only ordinary and non-resident creditor, on the grounds of an alleged attempt at unfair dealing, in favor of preferred parties,, to the injury of all other creditors, including plaintiffs.

At best, a non-resident creditor can claim no greater right than a resident, when he invokes the aid of the resident jurisdiction; and the remedies which this State extends to all,., foreign and native alike, are no more sacred in defence of the-one than the other before her own forum.

We are called upon to determine the effect of a proceeding; which simply works a modification of a remedy claimed by a creditor in executing a contract made in this State, and sought to be executed in this State. The plaintiffs claiurno privilege or preference over other creditors, nor to or upon any of the insolvent’s effects; and, in fact, they have none. The laws of' Louisiana authorizing the cessio bonorwm have existed, as it is. now understood, since 1817, long before the contract evidenced, by the obligation in this case was made.

• The remedy by attachment, urged by plaintiffs, was not a ' part of their contract. It is true that the law of attachment, • as invoked, existed when they received the notes. It is also true that at the same time, and by virtue of the same sovereign -authority, existed a law to which the courts of the State are bound to give effect; and that law provided, as a modification to one of the remedies given to enforce a contract, a cession by a debtor, which, by a stay of proceedings, suspends action, •and protects him when unfortunate and harrassed, and when it is evident his creditors can receive no benefits from vexatious process.

Cooley on Constitutional Limitations, page 360, correctly declares: “The right to a particular remedy is not a vested right (the exception when the remedy is a part of the right itself). Asa general rule, every State has complete control -over the remedies which it shall afford to parties in its own courts. * * Any rule or regulation in regard to the remedy, which does not, under pretence of regulating it, impair the right itself, cannot be regarded as beyond the proper province of legislation.”

These conclusions result from the adjudications of all courts, State and federal. We have no doubt of their application to the cause now under consideration.

The judgment is affirmed — except so far, however, as it orders a cumulation of plaintiff’s suit with the insolvent proceedings. We do not consider the courtis authorized to direct the manner in which plaintiff shall preserve or prosecute his rights, such as he may have. Appellant paying Costs.