Dilzell Engineering & Construction Co. v. Lehmann

Citations

• 120 La. 273
• 45 So. 138
• 1907 La. LEXIS 641

Syllabus

<p>On Motion to Dismiss.</p> <p>1. Appeal — ORDeb op Appeal.</p> <p>There was an order of appeal, as shown by the minutes.</p> <p>2. Same — Minutes Tkue Unless Contrary is Shown.</p> <p>The minutes are the proper record of the court. They are under the eye of the judge, who takes part in the proceedings, and are at least prima facie correct. In Edgerly v. Smith, 27 La. Ann. 97, the motion for an appeal with the usual order appended was in the record. Here it appears that it was in the record, and, besides, copied as part of the minutes.</p> <p>3. Same — Return Day was Not Suggested by Appellant.</p> <p>The return day of the appeal, if improper, was inserted in the order of the court by the order of the court, and is the act of the court.</p> <p>The maxim is relevant: “Whatever is done by the court is presumed to be rightly done.”</p> <p>“Quse in curia acta sunt rite acta agi prse-sumhntur.”</p> <p>On The Merits.</p> <p>4. Corporations — Insolvency — Receivership — Parties to Proceeding.</p> <p>Individually the managers or the stoekhold-ers of an insolvent corporation in the hands of a receiver are not parties to the receivership proceedings; and hence a suit to hold them liable individually to the corporation must be brought as a separate suit, subject to the rule of allotment that prevails in the civil district court, parish of Orleans, and cannot be brought as a mere incident to the receivership proceedings.</p> <p>5. Pleading — Petition—Inconsistency.</p> <p>A petition which states the facts and draws therefrom alternative legal conclusions, as that the defendants are not incorporated, but, if they are, then, etc., is not open to the objection of inconsistency.</p> <p>6. Corporations — Act op Incorporation — Validity.</p> <p>Where an act of incorporation fulfills all the conditions prescribed by the general incorporation law of 1904 (Act No. 78) incorporation is effected, even though the intention was to incorporate under the limited liability act of 1888 (Act No