Chinn v. First Municipality of New Orleans

1 Rob. 523 | La. | 1842

Martin, J.

The judge of the First District, in answer to á rulé to show cause why a mandamus should not he issued, commanding him to grant an injunction on thé petition of the First Municipality, states:

First, That the injunction, asked by the Municipality, would be a renewal of another theretofore granted and dissolved', ahd from the dissolution of which there is no appeal.

Secondly, That the allowance of the injunction was a matter in hiS discretion, which was duly exercised', and for this he refers to the record of the suit.

The rule was granted, on the affidavit of the Municipality, that shortly after the rendering of the judgment against it; a petition was presented, praying thát its nullity might be declared, and that the execution of it might be enjoined. The injunction obtained was dissolved, on the ground that the facts oh which it was claimed had not been sufficiently set forth. Whereupon, a second petition was preserved, in which the deficiencies of the first were attempted to he supplied, and á second injunction was prayed for, with a ted-der of the bond and security required by law. The judge refused io allow the injunction.

The original petition averred that a judgment by default taken against the Municipality had been confirmed, ánd made final. It alleged, that both the judgment by default, and the final one,- are null, because before either was obtained, the attorney of the Municipality had prepared an answer, which he had sent, and which had been delivered to the clerk of the court, or to one of his deputies, which answer was lost. In the second petition, the insufficiency of the first was attempted to be supplied, by an averment that the answer prepared by their attorney contained the plea of the general issue, and that the Municipality had a good and valid defence, which it would have established on the trial of the suit, if an opportunity had been afforded to it to do so.

Boselius, for the applicants. Chinn,pro se¿

The verity of the allegations in both petitions, was attested by the mayor, and by the individual by whom the attorney of the Municipality had sent the answer to be filed.

This action does not expressly present one of those cases, in which, the Code of Practice declares that an action of nullity will lie ; but we are not ready to say, that after a judgment has been obtained, by which the party shows that he will sustain a real injury unless he can obtain relief, and that relief cannot be sought in this court, it may not be obtained in the lower court, where the case presents facts, on which, in the other states of the Union, a court of equity would interfere. But the applicant must show specifically the facts on which he seeks relief. It does not suffice for him to say, that he has a good and valid defence. He must state particularly and specially, what that defence is ; and he must show that he has been guilty of no laches. In the present case, the party is not able to show whether the answer was given to the clerk, or to one of his deputies. It does not appear that, on the part of the defendants, any attention was paid to the case, until after the execution reached the hands of the sheriff. The plea of the general issue, we. assume, was disproved; for otherwise, the judgment could not have been made final. It is not pretended that the plaintiff had recourse to any improper means to obtain the judgment; and the Municipality has not shown, nor even averred, specially, any particular fact, which may lead to the conclusion that another trial would produce a different result. The allegations on which the extraordinary remedy sought for is expected, are too general and indefinite. The rule must, therefore, be discharged.