The weekly Iberian. (New Iberia, La.) 1894-1946, 1904-06-25
State Supreme
Court Decision
OF More Than Usual Local
Interest.

cisions of local interest and i'm
portance:
Gin recnivership of the New
iberia Cotton Mill Company, Ii,
mited.-On homologatlOn of re,
ceiver's account.
]. In cases OF insolvency, the
test of our appellate jurisdiction
is not the amount actually dis
tributed under a provisional ac'
count, but the amount of the fund
to be distributed in the case,
Briene vs.. Their Creditors, 43
Ann, I25. The liability Of a
particular holder of the insOlvent
corporation for unpaid subscrlp'
ton is an Incidental issue, which
does not affect the question of
jurisdiction on an appeal from the
judgment of homologation
>. Section s, Act 159 of 1899, re.
quiring the clerk to enter in the
order book notice of the filing of
every petition, motion, etc. has
no application to appeals, which
are matters of constitutional
right.
3. Where the receiver filed his
annual account, containing de
tailed statement of the liabilities
of the corporation, and showing
collections and disbursements to
date, on the hOmOlOgatiOn of said
account, after due notices, and
there being no opposition, the
testimony of the receiver that all
Of said liabilities, except those
styled contingent, were just debts
of the corporation, as showing by
it's books and by-notes and judg-
ments, was sufficient to warrant
the judgment of homolOgatiOn.
Succession of Rabasse. 80 An,
TAG.
4. The SUIT brought by the re
cciver against the appellant to re.
cover 50 per cent of his unpaid
subscription, is not before this
court, but if more should be col
lccted by said suit than is necces-
sary to pay appellants proportio
nate share Of debts Of the cOrpOr.
alton, and the costs and expenses
of administration, he would have
his recourse for reimbursement
against the receivers. Insurance
Company VS.. Vale, 1O5 La, 80.
1t is ther, fore ordered, adjudg,
ed and decreed that the Judd
ment appealed from be affirmed
appellant to pay costs of appeal
Octave p. and J. d. Romero
vs.. New Iberia and Milling and
Development Co., Ltd Syllabus:
|. Where the court, upon plain.
tiff's application, orders a dsfen-
dant to produce on a certain day a
document which they alleged he
had in his possession and which,
on being produced, would show
the existance of the contract upon
which they had declared, and the
defendant answers the order by
declaring that such written paper
was not such as plaintiff had de-
clared, but, such as it was, he
could not produce it, as 1t had
been lost or mislaid, the court
was without authority. to order
that the document should be held
to be such as the plaintiff assert
ed it to be, and that it would, if
establish the contract
declared on, IN the absence of any |
traverse by plaintiff of defend
ants return to the order and any
evidence taken on the subject.
2. 1t was the duty Of the plain.
tlffs, as such, to have established
a flirmatively, by evidence, the ex-
istence of a contract between
themselves and the defendant and
its terms and conditions, although
the contract may have been in
and could not be produced
it was none the less their duty to
have established the contract and
it's terms by secondly evidence.
The courts order relieved the
plaintiffs from doing what they
we're legally required to do and
place defendant, throughout the
rail, at disadvantage.
We are of the opinion that JUS.