6 Rob. 17 | La. | 1843
A suit having been instituted by the Commercial Bank, expressly for the use of the Mechanics and Traders Bank, against the present plaintiff, judgment was obtained against her, and execution issued thereon, whereupon she obtained an injunction to stay the proceedings against her, on the ground, that she had tendered the amount of the judgment in the notes of the Commercial Bank, to whom she was originally indebted, on a debt contracted in the State of Mississippi, by which State the said Bank was chartered, and that, according to the laws of that State, her debt might be discharged by a tender of the notes of said Bank, whether it continued to be her creditor, or had transferred the debt; that the Mechanics and Traders Bank, to whom the Commercial Bank had transferred the debt, did not acquire by the transfer other rights than those of the transferror, and, therefore, had not that of insisting on payment in specie, but was bound to receive the notes of the Commercial Bank. The injunction was perpetuated, and the Sheriff was ordered to receive in discharge of the execution the notes of the Commercial Bank, and to return it satisfied. The defendants have appealed.
Admitting all the allegations of the plaintiff to be true, it is now too late for her to avail herself of them. The defendants are in possession of an absolute judgment, condemning her to pay a sum of money in specie, which is unappealed from, and cannot be opened, and its regularity inquired into by the court which rendered it, on the plaintiff’s application to enjoin the execution of it.
Lastly, the injunction has been claimed on the ground, that the execution was issued prematurely. Notice of the judgment was served on the present plaintiff and appellee, on the 3d of January, 1843. The execution bears date the 14th of the same month. If the date can be taken for the day on which the execution was issued, there were between the service of the notice and the day of issuing the execution, (from which, ten days being necessary, a Sunday must be excluded,) but nine days. If the date of the execution does not establish the day on which it was issued, this was done in the present case by the affidavit on which the injunction was granted, which attests, that the execution was issued on
If an execution issues prematurely, the party injured cannot demand to have an injunction restraining it perpetuated, if his adversary has a right to obtain another execution as soon as the injunction against the former is perpetuated. All that he can expect is, to be relieved from the payment of costs and damages, as he has had the benefit of all the delay he was em titled to.
It is, therefore, ordered, that the judgment appealed from be reversed, and that the injunction be dissolved; the defendant and appellant paying the costs of the lower court, those of the appeal to be borne by the plaintiff and appellee.