33 La. Ann. 372 | La. | 1881
The opinion of the Court was delivered by
The plaintiffs in this case brought suit against the defendants for the recovery in solido against Coons as principal and Zunts and Venables as sureties, on an injunction bond, of one thousand dollars, the amount of said bond, and of $11,793 76 against Coons individually as damages caused by the institution of a" suit and issuance of an injunction thereon by said Coons, which suit, they aver, was brought
The only question which is to be decided in this case is, whether the suit was instituted by Coons and the injunction applied for and obtained through malice and without probable cause, as we cannot sustain the objection to the suit on the ground set forth in the exception of improper joinder of actions and parties. The suit is for damages alleged to have been caused by the wrongful institution and prosecution of the suit, with malice and without probable cause, the damages claimed against the sureties on the injunction bond being limited, of course, to the responsibility incurred to the amount of the injunction bond, the injunction being averred as one of the causes of the damages, Where it is clearly shown that a plaintiff has been actuated by malice, and that there existed no probable cause for the action, this Court has repeatedly inflicted damages upon the plaintiff; but, in all cases in which it has done so, it has required strong proof of malice and want of probable cause, and a showing of facts and circumstances in support of such averments to be positively established.
In the case of Décuir vs. Lieux, recently decided by us, and not yet reported, we have fully discussed and elaborated these views and given our conclusions as to the law applicable to suits for malicious prosecutions, which principles may be applied to such actions as the present.
There was judgment in the original suit in favor of defendants, dissolving the injunction and dismissing plaintiffs’ action as in case of non-suit. In the present suit there was judgment in favor of Oonery et al., plaintiffs, allowing $1000 damages (that being the amount of the bond) against the principal* and sureties on the injunction bond and against Coons, individually, for $436.
The statement of damages claimed by plaintiffs, which statement is annexed to their petition, embraces the following items :
Insurance premium paid for insurance on steamboat Katie, from 13th February to 13th March, 1875, say twenty-nine days, at $10 per day.................................. $290 00
Keepers’ wages (3) from 13th February to 13th March, 1875, twenty-nine days...................................... 101 00
Interest on $20,000 for twenty-nine days, at eight per cent.... 128 88
Interest on $20,000 for twenty-nine days, at eight per cent... . 128 88
Attorneys’ fees............................................ 2,000 00
Damages............................'...................... 10,000 00
Aggregating...........................................$12,793 76
These items of damages are alleged to have been caused by reason of the institution of the suit and the wrongful injunction therein, whereby the sale of the steamer was prevented and the expenses enumerated were rendered necessary and the $10,000 damages resulted.
It appears that the writ of inj unction was served on the plaintiffs herein on the 5th of February, 1875, and it is alleged that, having advertised that they would receive proposals for the purchase of the boat up to the 13th February, 1875, they caused a proposal for her purchase from Mrs. Mary W. Tobin (the only one made) to be opened. The proposal being to pay the sum of $40,000, of which $20,000 was to be paid in cash and the balance on time, with eight per cent, per annum interest from date; that by reason of the pendency of Coons’ suit, the value of the boat was greatly depreciated, competition prevented by the cloud thrown upon the title, etc., which compelled them to accept said bid, which was much less than the real value of the boat; and that only after the dissolution of the injunction were they able to sell and deliver the boat to Mrs. Tobin, on the 13th March, 1875; the expenses mentioned accruing between the date of service of the injunction and the sale and delivery aforesaid.
The plea of no cause of action was sustained by the court below and the injunction dissolved,- and Coons’ action dismissed at bis costs, as in case of nonsuit. We are not called upon, nor have we the right, in this case, to pass upon the correctness of that judgment, which has become res adjudicata. We are only to consider the judgment herein appealed from and decide whether the suit was brought with malicious intent and without probable cause.
The evidence shows that Coons consulted attorneys before the institution of the suit, and submitted to them the papers, agreements, etc., on which his claim was based. We do not think that his being himself one of the agents of the creditors, prevented him from enjoining the sale of the boat by his co-agents and claiming from them a settlement of accounts and the enforcement of his claim to a fixed interest in the boat. He, as the lower court decided, had not in his petition disclosed a cause of action in such manner as would sustain his suit, but this fact alone, in the absence of any proof as to malice, did
In this ease, we think the damages claimed should be confined to those actually sustained by reason of the injunction, and that it is not -one which calls for the infliction of punitory or vindictive damages.
The amount allowed in the judgment of the lower court seems to have been based upon sufficient and satisfactory proof, and we do not leel j ustified in disturbing it. '
The judgment appealed from is, therefore, affirmed with costs
