On Rehearing.
SOMMERVILLE, J.These three cases, by consent in open court, were consolidated, tried together, and disposed of in one judgment. On the former hearing of the cause, our attention was directed by defendant to a motion by one of the plaintiffs for an appeal from an early ruling made during the course of the trial, and we refused to review the judgment appealed from in so far as it dismissed the two suits against the liquidators. On a re-examination of the record, it was found that an appeal was taken by all the opponents to the account of the liquidators which had been opposed in the consolidated proceedings, and a rehearing was ordered.
[3] The original party to the litigation was the Gibsland State Bank, which went into the hands of receivers December 22, 1910. Within two months thereafter, the stockholders met, and, under the terms of the charter of the bank, they elected liquidators in the persons of R. Colbert, C. J. Leary, and J. H. Houck, who superseded the receivers. The appointment of these liquidators was confirmed by the court, and each one gave bond in the sum of $10,000 to the judge of the third district court of the state of Louisiana. About 12 months thereafter receivers were again appointed to the said bank, and took the assets over from the liquidators who had been previously appointed.
February 19, 1913, the several plaintiffs joined with what is termed in the transcript a petition and rule, in which they alleged themselves to be deposit creditors of the insolvent Gibsland State Bank, located at Gibsland, Bienville parish, La., which was then in the hands of receivers; that the former liquidators of the bank, Houck, Leary, and Colbert, had failed to render an account to the court or to the duly appointed receivers; that they had failed to deposit the money collected by them in bank as required by law; and they asked that defendants be required to file a true statement of their account and administration of the affairs of said bank during the time they administered upon them, and to pay all money shown to be in their possession according to law, and that on failure to comply with such order they be adjudged and condemned jointly and severally with their surety to pay 20 per cent, statutory damages.
Prior to this proceeding, the Leidigh-Dalton Lumber Company and the C. F. Petty Stave Company filed suits against the liquidators for certain amounts alleged to be due them as creditors of the Gibsland State Bank. The proceeding before referred to by the two creditors named is entitled on the transcript, “Petition and Rule.” In the prayer attached to said document the plaintiffs term themselves petitioners, and they ask that the liquidators be cited to appear and answer. Citations were issued .and served on the three defendants, ordering them to file answers within 10 days after service thei*eof, etc.
An order was made at, or about, the same time by the district judge directed to the liquidators to show cause on the 17th day of *165March why they .should not file a statement or account of their administration of the affairs of said bank. It appears that this qrder was not served, and the minutes of the court fail to disclose that anything was done under said order. Defendants formally asked that the order be dissolved, for the reason that it had never been served upon them.
Respondents appeared and excepted to the petition on the ground that it disclosed ho cause of action, as there was no allegation that the court had appointed respondents as liquidators; and, not having been appointed by the court, that the court was without authority to order them to make an accounting; and that whatever rights the plaintiffs had could be only exercised by ordinary proceedings for settlement, and not by summary proceedings for an accounting; further, that no relief or judgment is prayed for, and that the defendants cannot be penalized for refusing to account; and, as no specific amount of indebtedness is alleged, that no statutory damages of 20 per cent, can be allowed. In the event of the overruling of said exceptions, they answered, denying all the allegations in plaintiffs’ petition, or rule, and alleged that the entire assets of the Gibsland State Bank, except the amounts distributed, were turned over by them to the receivers duly and legally appointed by the court, and that all of the assets, including the books, are now in the hands of said receivers, and that they could not file an account.
A re-examination of the pleading which has been termed a rule shows it to have been a petition in an ordinary suit, filed under the title: In the Matter of the Liquidation of the Gibsland State Bank. The exception to the form of proceeding was properly overruled. The other exceptions were properly overruled; for plaintiffs alleged themselves to be deposit creditors of the Gibsland State Bank, and they had, in separate actions in the same ■ court, sued defendants for specific amounts alleged to be due to them.
They (the liquidators) had been confirmed as liquidators of the Gibsland State Bank, by order of court, and they gave bond to the court for the faithful discharge of their duties as such liquidators. They were therefore officers of the court, and subject to the orders thereof. The exception to the form of proceedings was properly overruled.
An account was filed by the liquidators and opposed by plaintiffs.
On the trial of the case, an expert accountant was appointed to examine the account of the liquidators, together with the books and vouchers of the bank, and to report on same.
The accountant was also a witness, and he testified, in connection with his report, that defendant liquidators had accounted for $159.81 more than they had received as liquidators of the Gibsland State Bank.
But the witness arrived at his final conclusions by conjecture with reference to some of the items on the account made by him. He says in his report:
“Now, in explanation of the shortage of $3,329.25, will say that this amount came about in this way, I think and believe, the records will show it also. * * *
“Then, if we take these two amounts from the $4,829.42 total transfer, we will have * * * a balance of $3,489.03 which was, as far as I can judge from the records, applied on notes. Then, if we allow the liquidator's’ account credit for this amount, it will then show as over $159.81 final.
“Of course, it could be that some of the items I have claimed went to credit of note could have been placed otherwise, but the records do not show it.”
The evidence on the trial of the case showed that the expert was wrong in his conjecture as to some of the items which he thought and believed went to credit of notes, and when he was examined on the basis of his belief with reference to certain credits which he supposed existed and which he allowed to defendants, he answered as follows:,
“Q. Now, Mr. Deas, in making up your credits for the shortage as shown in the cash, you merely made it from supposition, and by dates for credits by some notes? A. Not merely supposition, only one conclusion to be reached, *167when, there is a transfer or when there is a payment, when there is a payment and no cash collected, it could be nothing other than a transfer. Q. Then you simply took it for granted when there was a payment shown, and, the cash was not shown, it was a transfer? A. Yes, sir. Q. Now, if that was a transfer, then it was a transfer to some note belonging to' some party who was not a depositor in the bank? A. I don’t know whether a depositor or not. Q. All the depositors were credited with their 25 per cent, dividend on the notes that the bank held against them? A. Yes, sir. Q. Then, if any other transfers were made, they were to notes over and above the 25 per cent.? A. Yes, sir.”
The testimony of the witness was most uncertain and insufficient, and it is too weak upon which to base a conclusion. Defendants were serving as liquidators, and it was their duty to have kept complete and correct accounts of the business conducted by them. Only one of the defendants took the witness stand, and he did not attempt to show that what the expert “believed,” or “thought,” or “judged,” might have been true. He testified that he transacted all of the business of the bank for the three liquidators, and he had it in his power to have proved any and all credits which were made or should have been made, and he did not attempt to do it.
The defendant appeared to be quite indifferent about the whole matter. With reference to the account prepared by him and filed under the order of the court, he testified:
“Well, the account for the liquidators was made up from a copy of the books. I will state with some apology to the court that I was not exactly careful about making that up, because I was disgusted with the spirit in which it was requested, and I embodied the books of the bank as the basis of this report, and, if there were any errors in that report, they should be reconciled by reference to the books themselves. Q. In other words, if there were any errors in that account, it is due to inaccuracy in checking from the books? A. Yes, sir; and, further, that part of the liquidators’ account which shows transfers on notes and some other minor details were made up from memory largely. I thought I remembered the transactions and I could risk my memory, and I mado them subordinate to the books themselves, which were the basis of-the report.”
The account shows an apparent deficit in cash and notes of nearly $9,000. But some, perhaps all, of the missing notes, are accounted for; and we understood appellants to waive their claims for them. And the suits as to them were properly dismissed.
These accounts further show that defendants have failed to account for $3,450.89, received by them in cash, for which they are responsible.
It is therefore ordered, adjudged, and decreed that the judgment appealed from is annulled, avoided, and reversed; and it is now ordered that there be judgment in favor of plaintiffs the Leidigh-Dalton Lumber Company and the C. F. Petty Stave Company, and against R. Colbert, C. J. Leary, and J. H. Houck, ordering and directing them to amend the account filed by them as liquidators of the Gibsland State Bank, by placing thereon $3,450.89 cash, and that they be charged with said amount, as not having been accounted for by them, and that they be ordered to pay said amount to the receivers of the Gibsland State Bank, to be distributed in due course of administration; reserving to plaintiffs any rights they may have in and to said fund; all at the cost of' appellees. The right to apply for a second rehearing is reserved to all parties.
MONROE, C. J., takes no part, not having heard the argument.