State Nat. Bank v. S. W. Clark & Sons

Citations

• 115 La. 692
• 39 So. 844
• 1905 La. LEXIS 721

Syllabus

<p>Pleading — Defects—Cube by Admission of Evidence.</p> <p>Pending a respite which had been granted to the commercial partnership of S. W. Clark & Sons, the sons withdrew from the firm and turned the business over to their father, without, however, transferring their interest in the partnership or their interest in the partnership property. The State National Bank, having obtained a judgment in solido against the partnership and the individual members, caused a fi. fa. to issue, under which the contents of the store No. 624 Canal street were seized as property of their debtor. The wife of the senior member of the firm enjoined the sale on the ground that it was her property under a dation en paiement made to her by her husband, pending the respite, in partial payment of paraphernal funds received by him and converted to his own use. The seizing creditor resisted her demand, claiming that the property transferred was not the property of the husband, but of the partnership; and could not be transferred by him to his individual creditor, but, if he could do so, the title would pass, subject to the rights of the partnership creditors.</p> <p>The court sustained the seizing creditor and dissolved the injunction, and the plaintiff in injunction appealed. The judgment of the court is affirmed. It was claimed that the seizing creditor should, in answer to the injunction, have alleged the insolvency of the-partnership and of the husband, and he had failed to do so.</p> <p>The want of such allegation was cured by evidence received without objection on the trial.</p> <p>(Syllabus, by the Court.)</p>