Keyes v. Shannon

Morphy, J.

A. McKeever is appellant from a judgment rendered against him, as surety of the defendants, on a bond signed by the latter to obtain the release of certain goods attached by the plaintiffs. This suit was begun by attachment in the Commercial Court of New Orleans, on the 16th of March, 1840. Some property was attached, which was released on the defendants’ giving bond, with A. McKeever as their surety, on the 20th of March, 1840. The condition of the bond was, that “if the defendants, Pierce Shannon and brother, should satisfy such judgment as might be rendered against them, the obligations should be void, or else should remain in full force.” On the following day, on the 21st of March, 1840, the defendants filed their schedule in the Probate Court, and made a cession of their property, whereupon the judge made the usual order, directing a meeting of their creditors to be held, and all proceedings against the persons and property of the insolvents to be stayed. On the schedule, the debt sued for by the plaintiffs was admitted to be due. The suit of Keyes & Roberts was transferred from the Commercial Court to the Parish Court, and cumulated with the proceedings in insolvency. On the 15th of November, 1841, the syn-dic’s attorney filed a written consent, upon which judgment was entered up against the syndic, on the same day, for $166 38, with legal interest from the day of judicial demand.

Under these facts, it appears to us, that the court below erred in giving judgment against the surety on the bond. McKeever bound himself to satisfy such judgment as the plaintiffs might obtain against the defendants in the suit against Pierce Shannon & Brother. No such judgment was ever rendered against them, as *174 they failed the very next day, and all proceedings against their persons and property were stayed. The event on which the surety undertook and bound himself to pay, has never happened. The judge below was of opinion, that the judgment against the syndic was the same thing as the judgment against the defendants in person. We cannot so consider it. The debt for which suit had been brought by Keyes & Roberts being admitted, the judgment entered up by consent against the syndic, was an idle and useless proceeding. It only bound the syndic to place the claim on his tableau of distribution, when he should file one. This he could and would have done without this judgment, as the debt was undisputed. The 35th section of the act of 1817, which provides for the continuance of suits against the syndic, applies to claims which are contested, and which it is necessary to liquidate. The judgment rendered by consent against the syn-dic, after the defendants had failed, is not such a judgment as was contemplated by the parlies to the bond. They had in view a personal judgment against the defendants in the suit; one that could have been satisfied out of the property attached, which the bond was intended to represent. Had the attachment not been dissolved, it is clear, that the property attached would not have been subject to satisfy this judgment rendered against the syndic, as the representative of the creditors of the insolvents. The property attached must have been considered as part of the general fund, from which all the creditors were to be paid. The plaintiffs had obtained no privilege on it, inasmuch as the defendants failed before any judgment was obtained. 2 Mart. 98 . 12 Mart. 32. 3 Rob. 461 .

The bond of the defendants represents the property so far as the attaching creditors are concerned. If, under the judgment rendered against the syndic, they would have had no privilege on the property seized under their attachment, they cannot have any right on the bond, inasmuch as the property attached, and which was represented by the bond, has gone to the benefit of the mass of the creditors. They stand in the same situation as if the property had remained subject to their attachment. In the case of Marr v. Lartigue, ( 2 Mart. 89 ,) wherein it was for the first time decided, that an attachment gives no lien in case of the *175 defendant’s failure, the Superior Court of the territory said : “ Had the defendant relieved himself from the seizure, he would have given security to defend the suit and abide the judgment of the court. Could the penalty of the bond have been recovered, when afterwards, and before judgment, the proceedings were stayed, so that no judgment could be obtained, and the debt became by law, or the consent of the majority of the creditors, reduced in its amount, and payable out of a certain fund only?” The case then supposed by the court, is the very one now under consideration, and we concur in the opinion, that no recovery can be had, as no judgment was ever rendered against the defendants within the sense and meaning of the bond, and the contemplation of the parties to it.

It is, therefore, ordered, that the judgment of the Parish Court be reversed, and that ours be in favor of A. McKeever, the defendant in the rule, with costs in both courts.