Morgan Dorsey & Co. v. Their Creditors

delivered the opinion of the court.

This is an appeal from a judgment discharging a rule taken by W. M. Duncan & Sons, on the syndics of the creditors of the insolvents to show cause why they should not he paid the amount of the dividend coming to them, in the same proportion as the other chirographary creditors have been paid, on the sum of $25,238 59, for which they had been placed on the tableau of distribution, and for which they obtained a judgment in this case on the 26th of April, 1832.

The record shows that on the seventh of June, 1827, a tableau of distribution was filed by the syndics of the insolvents, and that W. M. Duncan & Sons were placed thereon as ordinary creditors for the above mentioned sum ; that said tableau was opposed by several creditors, namely, by F. Depau and Samuel Hicks; that by a judgment rendered on the first *85of May, 1830, the oppositions of Depau and Hicks were sustained and that Duncan & Sons were stricken off said tableau of distribution as creditors. This judgment does not appear to hare ever been appealed from.

On the 26th of April, 1832, on motion of the assignees of W. M. Duncan & Sons, and on the written consent of Samuel Livermore, for F. Depau, the judgment rendered on the oppositions of Depau and Hicks was set aside and annulled ; it was ordered that the assignees of Duncan & Sons be placed on ’the tableau of distribution for the aforesaid amount, and nothing was done on this order until the rule in question was taken. This last rule is now opposed by the syndic for the mass of creditors interested in the tableau.

We think the judge a quo did not err: It is perfectly clear that the judgment obtained on the first of May, 1830, though rendered on the oppositions of only two of the insolvents’ creditors, settled the rights of all the persons concerned in the ableau of distribution, that it enured to the benefit of all the creditors and became the property of the mass, unless regularly annulled, rescinded or corrected within the time and in one of the modes prescribed by law; C. of Pr. arts. 548, 556, r J J 564 & 610. No appeal was ever taken from said judgment, .... . , ... no action oi nullity was ever brought against it, and one year after its rendition, it had acquired the force of res judicata. If so, how could the effect of sucha judgment he destroyed J ° J by the mere consent of the attorney of one of the creditors ? -it- . - _ . Samuel Livermore, as attorney at law of F. Depau, had even no power, unless specially authorized to do so, to deprive his client of the benefit of his judgment; he had no right to pose of his client’s property, the judgment formed res judicata in his favor as to the claim in question ; no one hut himself could validly renounce to it; and surely, it cannot he pretended that the other creditors of the insolvents, the extent of whose rights had also been liquidated and determined by the same judgment, can in any manner be bound or prejudiced by the subsequent proceedings had with the consent of an attorney *86who had no power to hind his client. In the case of Morgan & Co. their creditors, 4 La. Rep. 173, this court held that “the judgment of homologation on the tableau of distribution filed by the syndics, is,' in law, a judgment in favor of each cre^itor to whom a dividend is assigned; and has, in relation to the proceeds in the hands of the syndics, the authority of , . . . .... the thing judged. Under this principle of law, which, m our opiaion, cannot be controverted, it is clear that the judgment ren(^ere^ on ^13 26th of April, 1832, and which is now the basis of the rule under consideration, was a direct violation of . . the rights acquired by the creditors under the judgment concerning the mass, that the tableau of distribution had become and-could not be altered or amended; and we must therefore consider the order annulling the previous judgment on the oppositions; as being in itself a mere nullity.

It is therefore ordered, adjudged and decreed that the judgment of the district court.be affirmed with costs.