In re the Pelican Saw-Mill & Manufacturing Co.

ON the Merits. The opinion of the court was delivered by Breaux, J. The principal facts of this case were stated in deciding the motion presented by the appellee to dismiss the appeal. It is in consequence Only needful to state that the two points argued at the bar were: 1. The judgment of homologation was premature. 2. There is no evidence in support of the judgment. The facts as to the first issue presented are: That notice of the filing of the account was advertised on the 16th, 20th and 25th of November. The judgment was rendered and signed on the 27th of that month. As to the second point at issue, no note of evidence was taken and no evidence offered, save evidence of the fact that notice of the filing of the account had been advertised. The receiver made oath to a statement of his account, of which the following is a copy: “ The receiver has on hand under process of collection the annexed list of claims, which on inquiry are reported as may possibly be collected. He has also on hand in the parish of St. Tammany, on the Tchefuncta river, a flatboat with a floating saw-mill upon it, and sunk in the river, of which there is a possibility of his realizing two thousand dollars. Also a large number of logs in the same parish; the most of them are sunk in the river, for which he is endeavoring to get one thousand dollars and is endeavoring to find a purchaser for them. An order of court has been obtained to appraise these effects; attachments have been issued at the suit of the creditors against these logs. “ Application has been made to the city for a reduction of taxes.” *716 Recurring to the first point: the objection is that the required delays had not been given prior to homologating the account; that in counting the days neither the day when the citation is served nor the day when the delay expires are counted as counted here. With reference to these delays a similar objection was urged in Font et al. vs. Gulf State Land and Improvement Company, 47 An. 272. In that case the citation was served on the 9th of April and the default was taken on the 20th. The court said: “We note the contention that the 20th is not to be counted, because it is claimed the delay expired on that day. If it did, it would not avail the defendant, not making the application till the 23d. The day the delay expired, in our view, was the 19th, the 20bh was no portion of the delay.” This view completely answers appellant’s contention on this point. The other ground : that there was no evidence taken prior to the homologation of the account is true, as before stated, in so far as relates. to the facts. The affidavit of the receiver of record, copied above, relates to property in his possession and to acts of administration without reference, to his account. The receiver does not swear to the correctness of this account in this ex parte affidavit which forms part of the account. The presumption is that the receiver presented to the court an account he understood as being correct and presumably it is correct, although the affidavit is silent upon that subject. But the presumption supporting the act of a receiver who is an officer of the court, i. e. the presumption omnia rite, will not itself sustain the correctness of a judgment dependent upon evidence for its validity. In several decisions, notably in the case of Succession of Bellocq, 28 An. 155, it was decided that evidence sustaining an account should be introduced. In other decisions, in view of the fact that evidence to sustain many items would cost more than the amount of the items themselves, the court abated the stringency of the rule requiring the proof of each, and the administrator or executor’s account, upon limited showing, was admitted and approved. Succession of Bauman, 30 An. 1138, 1139. We do not desire to express any dissent from this last cited *717 decision. It is obvious, however, as an authority ic would not sup - port the conclusion that all evidence can be dispensed with in homologating an account. If accounts can be thus homologated in so far as not opposed, they can be also homologated without further proof when no opposition is filed; this would be in direct conflict with several well considered cases. The account should at least receive the sworn approval and support of the accountant as a basis for the judgment of approval. We adhere to the authorities requiring some proof of the correctness of an account prior to its homologation as a whole, or in so far as not opposed. In this case the legal maxim construatio legis non facet injuriam pertinently applies; the syndic or receiver, appellee, is not specially interested, and if interested his burdens are not greatly increased, as it requires no more ability and energy to defend against a number of oppositions or a few presenting substantially the same issue. It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and annulled, and this case is remanded to the District Court for the trial of such issues as may be raised before the court. Appellee to pay costs.