City of New Orleans v. Cordeviolle

| La. | Nov 15, 1855

Buchanan, J.

An injunction was sued out (on the 17th January, 1855,) by defendant, against an execution issued by plaintiffs upon a judgment obtained by them for nineteen hundred dollars, with interest. The ground alleged for the injunction, was compensation. The petition for injunction alleged, that the city had taken property of defendant for public use, and that commissioners or experts, appointed jointly by the city and defendant, had estimated the value of the property so taken at ten thousand dollars cash. The evidence does not show that the estimation thus made was ever approved or adopted by the common council, and we cannot view it as being conclusive on the city. Indeed it is proved, that a suit was instituted before another court, a few days before the suing out of this injunction, claiming- of the city judgment for the amount of the estimation of the property in question ; which suit was discontinued simultaneously with the trial of this suit in the court below.

The debt not being equally liquidated and demandable, cannot be pleaded in compensation of the execution enjoined. Of this opinion was the District Court, and dissolved the injunction. The defendant (plaintiff in injunction) having appealed from that judgment, the plaintiff and appellee has answered the appeal, demanding an amendment of the judgment of the lower court; and to be allowed damages and interest, according to the Act of 1881.

We think the appellee entitled to the amendment asked, so far as damages are concerned; but will allow no interest, inasmuch -as the judgment enjoined already bears the highest rate of interest sanctioned by law.

It is therefore adjudged and decreed, that the judgment appealed from, be amended: that plaintiff have judgment against defendant, for one hundred dollars damages; and as so amended, that the said judgment be affirmed, with costs in both courts.