THOMAS ET ALS. vs. BREEDLOVE ET ALS., 6 La. 573

Mathews, J., delivered the opinion of the court. In this case the plaintiff sues as executrix of the last will and testamentof her late husband Joseph Thomas, as tutrix of her minor children and as partner in the matrimonial acquets and gains, to recover debts alleged to be owing by the defendants to the succession of the deceased Joseph Thomas. Judgment was rendered in favor of the defendants in the court below, from which the plaintiff appealed.

The evidence of the cause shows that Thomas in his life time became surety on an appeal bond for the defendants or for a commercial firm composed of one Bedford and them. This bond was made in favor of Aikin and Gratz, who had obtained a judgment against the house of Bedford, Breedlove an(j obeson in December 1826, from which an appeal was taken by the latter and the judgment of the District Court was finally affirmed.

The surety was pursued on the bond and paid to the appellees in that suit the amount of their judgment and costs, and also the amount of costs incurred in defending the suit against him on the bond, &c. This payment seems to have been made by instalments in 1827 and 1828, and amounted to the sum of six thousand one hundred and ninety-nine dollars and forty-six cents.

Previous to the payment made by the surety, viz.: in the month of March 1827, Bedford, Breedlove and Robeson ceded their property for the benefit of their creditors, &c. and at the time of signing the appeal bond they placed in the hands of the surety certain promissory notes, (as collateral security) drawn and endorsed by certain commercial firms in the state of Mississippi.

At the meeting of creditors called on the failure of Bedford, Breedlove and Robeson, Thomas was not put on the bilan as a creditor on account of the debt now claimed by his representatives, nor was he cited to appear in relation to this claim, which was then only contingent. He was however afterwards placed on the tableaus of distribution by the syndics without his interference, and always declined to take any dividend of the insolvents estate. On these facts the defendants have assumed two principal grounds of defence. 1st.

That the surety was so negligent in endeavoring to recover on the notes which were placed in his possession for collateral security, as to lose the sums therein promised, an amount more than sufficient to indemnify him for his responsibility incurred by the bond. The loss thus incurred, the defendants allege ought to be borne by the surety and they freed from the obligation to refund, &c.

The second ground of defence assumed is that the cession of property made by Bedford, Breedlove and Robeson, and acceptance by their creditors has relieved them from all absolute obligations to pay any debts which existed at that time, whether certain, conditional or contingent. when notes arc the hands a surety to indemnify him agafost loss on payment of a sur,etr is “fe°r®veÍ“ insjjd lovlrysoonaf™0to, collect or to pursue them is not imputable to the a citation or something* cquivla'v,is lleccssary to the vaevery As to the first means of defence, it was in our opinion pro-properly repudiated by the court below.

The testimony shows pretty clearly that the obligors on the notes, (if not at the precise time when they became due) were very soon afterwards insolvent, consequently no negligence was impu- . table to the holder in not pursuing them. x ° The questions involved in the second may de termed legal A J ° and are not free from difficulty which too often occurs in cases of insolvency, notwithstanding the positive legislation on this subject, and the numerous commentators of Spanish writers m relation to the concurso de acreedores. 1 he most . . n. 7 i . _ . - . important it not the sole question which arises m the present case is, whether the plaintiff as representing the succession of her husband is bound by the proceedings and judgment of the concurso formed at the instance of Bedford, Breedlove and Robeson, so as to bar the action now brought?

We lay it down as a first principle in our iurisprudence a a a. that citation to a defendant or something which the law ° * scribes as an equivalent, is necessary to the validity of any judgment. By express statutory provisions of the state, citation to the creditors in a concurso is required. In the 8th

section ofthe act of 1817 which refers for the manner of calling creditors together to the art. 4 tit. 16 book 3 of the Old Code which relates to respites; but which was adopted by the act of 1817 in cases of cession of goods. This

article of the Code requires that creditors residing within the parish where the meeting may be called, should be summoned to attend by process issued from the court holding cognizance of the concurso. Thomas in whose right the debt is claimed from the defendants was not placed on the bilan of the debtors as a creditor in his individual capacity, although he was there placed as joint creditor with another person under a partnership claim for a small amount and voted on this claim for syndics, &c. He was not cited according to law being a resident of the parish where the concurso was pending.

Under these circumstances we are unable to perceive any good reasons why he or his representatives should be concluded by the proceedings and judgment in that case. a partnership Sian islío "notice partner whoso claim is omitted, and he is not a party to or bound jiJjjSthe prooeod" a creditor who hiianVor his^ndicited to attend the ¡tors is not bound by their proceedings, even, if lie is placed ou the ta- ^ Menu of distnbution but declines dends.’”8 divi' The knowledge which he had of the surrender of property in consequence of the partnership credit which belonged to jjjm all(j another inspector of tobacco, certainly did not make j-,jm a party in his individual capacity.

Not having been placed on the bilan as a creditor in his own separate right and not having been summoned to the meeting by service of citation in relation to the debt now claimed by his represent- . *111 * x atives, we consider that he ought not to be viewed in the light 0 0 of a party to the concurso, and consequently that the proclamations and public advertisements in relation thereto can legally, in no manner affect the interests of the plaintiffs in present action. At the time of that proceeding he was only a contingent creditor.

If it be admitted in pursuance of the doctrine established in the works of Salgado and Febrero that he had a right to cause himself to be placed on the bilan, it could have been only done for conservative purposes being a creditor merely contingent. This right of demanding a place in a concurso, by contingent creditors appears to us to be a privilege decreed to persons in that situation which may be waived by them without affecting their credits.

As Thomas was not placed on the bilan of the defendants cited to the meeting of creditors, the circumstance of afterwards giving him a place on the tableau of distributions only without his solicitation but even contrary to his will appears by the constant refusal to partake iuihe divix A J ± dends,) does not constitute him legally a party to the proceed-a j x j x curried on by the insolvent’s against their creditors, so% to gain the judgment in that case the force of the thing adjudge^, (rei judicata) against the creditor or those who now in his right. The case cited from 7 Martin, N.

S. 564, is not similar to the present. The plaintiffs had been placed on the bilan and were cited as creditors. They cliiimed as endorsees and the note on which their claim was grounded had been placed on the

schedule in the name of the payees and they suffered judgment to be pronounced without opposition, which declared the payees to be bona fide holders and real creditors. The case now under consideration is not, (in our opinion) distinguishable, in any important feature from that of Bainbridge vs. Clay, 3 N. S. 262. Before the commencement of this suit the proceedings in the concurso of the creditors of the defendants had been homologated and dividends declared. The principles established in the case of Taylor vs. Hollander, 4 Martin N. S. 535, and that of the Franklin Bank vs.

Nolte et al., are therefore not applicable to the matters now in contest. The cause must be decided in conformity with the doctrine established by the opinion and judgment rendered in the case of Bainbridge vs. Clay. The proceedings of a debtor against his creditors are res inter alios acta as to any one who is not on the hilan and whose claim is not mentioned therein.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled: And it is further ordered, adjudged and decreed, that the plaintiffs and appellants do recover from the defendants and appellees the sum of six thousand and three dollars principal, and one hundred and ninety-six dollars cost with interest on two thousand nine hundred and thirteen dollars sixty cents, at the rate of six per cent per annum from the 21st June 1827, and like interest on three thousand and eighty-nine dollars and ninety-six cents, from the 24th of June 1828 until paid with costs in both courts.