Crowley Bank & Trust Co. v. Hurd, 69 So. 175

Crowley Bank & Trust Co. v. Hurd

69 So. 175 | La. | 1915

Lead Opinion

On Motion to Dismiss.

SOMMERVILLE, J.

[1] This is an executory proceeding, which was enjoined by the defendant, without bond, on the ground that the debt had been partially paid. There was judgment dissolving the injunction; and the writ was continued for the amount alleged *789by the defendant to be due, and admitted by plaintiff in executory proceedings, and the sale was ordered to be proceeded with for the sum of $2,750, with interest, etc. Defendant took a suspensive and devolutive appeal, and the bond was fixed at $250 by the court. Plaintiff moves to dismiss the appeal on the ground that the bond should be for $375.

Under the case of Levert v. John T. Moore Planting Co., Ltd., 133 La. 591, 63 South. 198, and authorities there cited, the bond of appeal was properly made to cover one-half over the costs of court. It will be presumed that the district judge, in fixing the amount of the bond in this case, fixed it at one-half over and above the amount of the costs of court. The record is before us, and the estimate of the district judge appears to have been quite liberal.

Plaintiff, and appellee, has not informed the court of the process by which he arrived at the-conclusion that the bond should have been for $375.

The motion to dismiss is denied.

Opinion on the Merits

On the Merits.

O’NIELL, J.

The plaintiff instituted ex-ecutory proceedings to sell the defendant’s property to satisfy a mortgage note drawn by him for $4,000, dated the 16th of June, 1913, with interest at 8 per cent, per annum from date and 10 per cent, attorney’s fees.

The defendant, alleging that he owed the bank only $2,750, with 8 per cent, interest on $100 from the 27th of October, 1914, and on $2,650 from the 31st of December, 1914, prayed for and obtained a writ of injunction.

Instead of permitting the seizure and sale to go on in the executory proceedings to collect the debt which the defendant acknowledged he owed, the plaintiff filed a motion to dissolve the writ of injunction. It is admitted in this motion that the defendant owes only $2,750, with interest and attorney’s fees, as alleged in his petition for injunction; but it is contended that, as the pledgee of the mortgage note of $4,000 as collateral security, the bank had the right to collect the note, with interest and attorney’s fees, and account to the defendant for any surplus over the debt due by him. The plaintiff prayed that the writ of injunction be dissolved entirely, and, in the alternative, that it be dissolved in so far as to permit the executory proceedings to go on for the amount which the defendant admitted he owed, and prayed for 20 per cent, statutory damages, and for $300 additional damages for attorney’s fees.

Judgment was rendered dissolving the writ of injunction, ordering the executory process to go on for the collection of the $2,750, and interest, attorney’s fees, and costs, and reserving the plaintiff’s right of action for damages. The defendant in the executory proceedings, plaintiff in injunction, has appealed.

[2, 3] The appellant’s first contention is that the district judge committed an error in trying the motion to dissolve the injunction summarily, and in refusing his demand to refer it to the merits. Our opinion, on the contrary, is that judgment should have been rendered on the pleadings. The only issue presented was whether the plaintiff had a right to proceed via executiva for the entire $4,-000, and interest and attorney’s fees, or only for the amount of the indebtedness acknowledged 'by both parties. The demand for statutory damages was frivolous. They are not allowed except for dissolving an injunction arresting the execution of a judgment in ordinary proceedings. C. P. art. 304; Bank v. Sinnott, 136 La. 95, 66 South. 557. The additional demand for $300 damages depended upon the demand to dissolve the writ of injunction entirely, and was therefore not sustained by the allegations of the motion to dissolve.

[4] The writ of injunction should have been so worded as to restrain the collection of that *791part of the debt which was denied in the petition for injunction. The judge’s order, however, on the petition for injunction, directed that the writ issue “as prayed for,” and was controlled by the petition. The plaintiff in the executory proceedings then had the option to go on with the seizure and sale to collect the amount admitted to he due, or-to withhold the sale of the property pending a decision of the defendant’s contest of the plaintiff’s right to proceed to collect the disputed sum.

The judgment appealed from is annulled and set aside, and it is ordered and decreed that the writ of injunction he perpetuated in so far as it prevents the collection of more than $2,750, with interest at 8 per cent, pelannum. on $100 from the 27th of October, 1914, (and on $2,650 from the 31st of December, 1914, and for 10i per cent, thereon fox-attorneys’ fees and the cost of the executory proceedings. The appellee is to pay all costs in the injunction proceedings.

Rehearing

On Application for Rehearing.

PROVOSTY, J.

The cases of Cumming v. Archinard, 1 La. Ann. 279, and Iberia Cypress Co. v. Christen, 112 La. 451, 36 South. 491, are easily distinguished from the present one. They were appeals; the present one is an injunction. An appeal can only lie from the writ of seizure and sale in its entirety; not so with an injunction, which may issue only against that part of the writ which is excessive. When the defendant in writ appeals from the entire writ, he does a thing he has the right to do; but when he enjoins the entire writ on the ground that a part of the .demand for which the writ issued is not due, he does a thing he has no right to do. In such cases the party through whose fault costs have been uselessly incurred should pay them. If, instead of enjoining for the part of the debt not due, according to his right, and letting the executory process go on for the part of the debt that is due, the defendant in writ enjoins the entire writ, and as a result the costs that have been incurred in seizure and advertisement, etc., go for naught, it is but right that he should pay them.

Rehearing refused.