Arnous v. Lesassier

12 La. 124 | La. | 1838

Martin, J.,

delivered the opinion of the court.

The plaintiff is appellant from a judgment dissolving an injunction staying the sale of a plantation of his, seized on a fieri facias, and the defendant has prayed that the judgment may be< so amended as to allow him twehty instead of ten per cent, for his damages.

An injunction Sieof^piantsf tion, undera/e-cause^aS the ofianTa^oinlng are not included mentj asTeoes-sary to its cuín-vation, etc., will not he sustained; fbr an injunction! non was SeserN hedías a tract of shownto be cui-üvated as a coi-¿on and sugar estate. Of SmageXhe decreed on the dissolution of an injunction, is cretion ^of the court, under the provisions of the act of 1831. The law at-lows ten per cent. interest, on the ^junctions, but the coart will not give it, when it is not prayed for by the paity.

The injunction was prayed, on the ground, that the plantation was incorrectly advertised.

The dissolution of the injunction was asked on a denial and insufficiency of the allegations in the' petition, and the insufficiency of the bond.

Pet-ib°cei' alleges, that the plantation ought to have been seized and advertised together with other tracts of land contiguous thereto, and which, necessarily, made a part of it as ^dispensable to its cultivation, for the needed supply of timber and wood. The district judge has been of opinion, that this allegation is unsupported by the evidence. It was further urged, that the advertisement described the planta- . ° r tion as a tract of land, when it is charged and proven that it is cultivated as a cotton and sugar estate, and has thereon eveiT necessary building. And it is added, that although the sale was advertised for the 17th of July, and the advertisement dated the 15th of June, it was not published until the. 1*7*h tue 1 'U1*

There is po evidence of the day of publication. The injunction was correctly dissolved.

As to the damages, the court gave ten per cent, and /.in . . . a t seventy-five dollars, as special damage. According to the act the legislature of 1831, page 102, the damages are not f0 exceed twenty per cent., unless damages to a greater *. .... ° amount be proved. This was in the discretion of the court, which does not appear to have been improperly exercised. 11 i x *> The judgment, however, does not allow interest at ten per cent, per annum, as the act requires. We do not amend it }n this reSpect, because the appellee has not prayed for it. x 1 J

jt jgj therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.