Brandon v. Allen

28 La. Ann. 60 | La. | 1876

MORGAN, J.

The facts from which this litigation springs will be found in the ease of Gerard Brandon vs. William Hughes. Hughes had sold a certain plantation in Tensas parish to Brandon. Brandon had assumed to pay certain mortgages resting upon the plantation and certain ■debts due his vendor. The defendants, among others, sued the plaintiff on his alleged assumpsit. As he was a nonresident they proceeded by attachment, which was levied on his Mondora plantation. In the lower court they obtained judgment. From that judgment a devolutive appeal was taken. Pending the appeal, the Mondora plantation was. sold, and purchased by the jiresent defendants. This court reversed the judgment appealed from. The plantation was returned to the plaintiff.. He now sues to recover upward of §30,000 damages caused by the seizure of his property.

The evidence satisfies us that the seizure under the attachment was-in reality only nominal; that the plaintiff either worked it himself or leased it, deriving whatever profit may have been made from it himself,, and that if any deterioration took place during the time the attachment rested upon it the fault was with the plaintiff or with those to whom he leased it. Upon the question of damages as the immediate result of the attachment we think the case is with the. defendant. His property was, however, illegally attached. To get rid of the attachment he had to employ counsel. The fee which his counsel earned and which he was obliged to pay was a damage to him. This fee, we think from the testimony, should be eighteen hundred dollars.

Defendants contend that the property attached did not belong to the plaintiff. We do not understand how they can set up such a plea, as it was only upon their allegation that it did belong to him that the attachment issued. They cannot be permitted to say that the property was his when the allegation was necessary to enable them to procure the-attachment, and then say that it was not his when it is necessary to shield- them from damages caused by the issuing of the attachment.. Besides, when the attachment issued it was his property.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed; and it is now ordered that there be judgment in favor of the plaintiff and against the defendant in solido for eighteen hundred dollars, with interest thereon at five per cent per annum from judicial demand, with costs in both courts.