Franklin v. Syndics of Warfield

Porter, J.,

delivered the opinion of the court.

This suit commenced originally in the Parish Court, and had for object to dissolve a partnership which existed between the plaintiff and insolvent in relation to their business as inn-keepers. But the latter having failed since the inception of the action, it has been transferred to the District Court, and cumulated with the proceeding in concurso.

There' have been two appeals brought before this Court from the proceedings in relation to the estate. The first was from a decision of the inferior tribunal in relation to the claim of one McCall, who asserted a right to specific property found in the insolvent’s possession at his failure. The Court versed the judgment rendered below, and remanded the cause for further proceeding, but at the same time confirmed that part of the judgment which established the debt due to the plaintiff by the insolvent.

The case came up again, on a right set up by the plaintiff, as partner, to have the possession of the one half of the property, which was found in the insolvent’s hands when he failed. The Court under the circumstances of the case, thought that the Syndic was entitled to it, and dismissed the appeal with the expression of its opinion, that the plaintiff could exercise all his rights against the Syndic who represents the estate.

While the cause was thus pending in the Court below, and before a tableau of distribution was filed, the plaintiff filed a supplemental petition, in which he stated that since the rendition of the judgment in his favor, he had, as partner of the house of Franklin & Warfield, paid further claims on *128said firm to the amount of $2257 89, for which he prayed judgment against the estate.

A party has a right to bring forward at any time before the filing of the tableau of distribution and its homologation, all claims in virtue of which he has become creditor since the rendition of the judgment on demands which existed previous thereto — -and for this purpose may file a supplemental petition.

The Counsel for the Syndic pleaded an exception, that no supplemental petition could be filed after judgment on appeal. The Court sustained the exception, and the plaintiff appealed.

It is beyond doubt that the plaintiff has a right to bring forward at any time before the filing of the tableau of distribution and its homologation, all claims in virtue of winch he has become creditor, since the rendition of the judgment or demands which existed previous thereto. The first decree only operated as res judicata on the matters embraced by it. And whether he called his petition a supplemental or an original one, is in our opinion immaterial. His case was still pending In concurso, and we do not perceive the error of his styling his petition a supplemental one. It certainly was such in relation to his claim against the estate. It was an addition to his first demand.

. It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; that the exception filed in the cause be overrulled, and the cause be remanded to be proceeded in according to law; the appellee paying the costs of the appeal.