
    
      W. A. Hanney v. John Healy.
    Whoro a judgment lias been rendered, accepting a surrender made by an insolvent debtor, and granting a stay of proceedings, according to the provisions of the 6th and 7th sections of the Act of 1855, and the Articles of the Civil Code 3051 et seq., the notice given to creditors in compliance with the above mentioned law, cannot, m case of informality in the return of the officer, as to the mode of making the service, prejudice or affect the shay of proceedings granted by the court.
    If a creditor wishes to question the legality of such proceedings, he cannot do so unless by a direct action to that effect.
    PPEAL from the Sixth District Court of New Orleans, Howell, J.
    
      JO. G. L. Bright, for plaintiff and appellant. Collens & Woolridga, for defendant.
   Vooehies, J.

The plaintiffs have appealed from a judgment maintaining an exception, filed by the defendant, to their right to institute this suit. The ground upon which this exception is based is, that there had been a surrender made by the defendant, and accepted by the court, before this action was brought.

It is not necessary to inquire into the bill of exceptions on file in this case, and into the requisites of a return of the Sheriff as to the mode or manner in which the creditors of the insolvent have been notified. Suffice it to say, that in this instance, the defendant had filed his bilan, on which the plaintiffs were placed as creditors, and obtained from the court a stay of proceedings before the institution of the present action.

The 6th section of the Act of 1855, p. 433, provides: “ That whenever the judge shall be convinced that the debtor who wants to surrender his property has complied with all the formalities prescribed, he shall endorse on the schedule that the cession of all the property of the insolvent is accepted for the benefit of all his creditors, and shall order a meeting of the creditors, to be called in the manner and within the time prescribed for respites. Civil Code, Article 3051 et seq.”

The 7th section reads : “ When issuing the order for the meeting of the creditors, the judge shall order that all the proceedings, as well against the person as against the property of the debtor, be stayed.” C. C. 3054.

The notice given to the creditors, in compliance with the above provisions of the law, cannot, in case of informality in the return of the officers, as to the mode of malting the service, prejudice or affect the stay of proceedings granted to the insolvent by the court. If a creditor wishes to question the legality of such proceedings, he caunot do so unless by a direct action to that effect; and, in no event will he be permitted to disregard, and treat as an absolute nullity, a judgment accepting a surrender made by his debtor, and granting a stay of proceedings.

The exception was properly maintained, and the plaintiff’s action dismissed, with costs.

Judgment affirmed.  