Lovenberg v. National Bank ( 1887 )

On Motions to Refobm Judgment, and fob Reheabing.

Willie, Chief Justice.

Since the judgment was entered up on this appeal a motion has been filed by the assignee, I. Lovenberg, to so reform the judgment as to allow consenting creditors interest upon their claims. The appellee has also filed a motion for rehearing, in which it is asked among other things that the cause he remanded to the district court with instructions as to the proceedings there to be had and the judgment to be rendered. The appellee asks further that if the judgment is rendered here, it may adjudicate also as to its claim against the assignee, Carl Schwarz.

As to this latter claim it is sufficient to say that in the court below judgment was rendered in favor of Schwarz and against the bank upon the claim, and from that judgment no appeal was taken, or assignment of error made for the purpose of reversing it. That judgment must therefore be treated as final upon this appeal, as also in the future proceedings to be had in the cause below, hereinafter directed.

The opinion and judgment heretofore rendered will be so ■ amended and reformed as to revise the judgment and remand the cause, with instructions to the court below to enter up judgment in all things conforming to the opinion heretofore delivered in the cause. The court will ascertain the amount of expense to which the assignee has been subjected in the management of his trust, and adjudge the same to be first paid out of the assigned estate. It will not include among such expenses the costs of tbi« suit, but will direct its entire cost to be paid by the appellee.

It will next ascertain the amount due and unpaid to consenting creditors, who have duly proved up their claims against the assigned estate, calculating interest thereon from the date when according to law interest commenced to run upon such claims. The court will not include the appellee among such creditors, nor allow it to receive any pro rata whatever upon the claim which was the foundation of this suit as brought and prosecuted by the appellee. That claim has been adjudged by this court not to be entitled to be ranked as the claim of a consenting creditor, and upon that question the decision of this court must be regarded as final.

If any balance remain, the court will apply the same first towards the payment of the claim of appellant Ghillain; and should there still be a balance, it is to be appropriated towards the claim of appellant Mayer. If a balance still remain the court will dispose of it as to law and equity may appertain.

The entire cost of this suit, both in this court and the court below, will be adjudged against the national Bank of Texas.