de Lizardi v. Hardaway

8 Rob. 20 | La. | 1844

Simon, J.

The plaintiffs are appellants from a judgment by which they, and their surety on the injunction bond, (also an appellant,) are made liable to pay to the defendants ten per cent interest and twenty per cent damages on the sum of $13,492 42-^ being the aggregate amount, principal, interest and costs, of a judgment rendered in favor of Robertson, Beale & Co. against the plaintiffs, (subsequently assigned rto the defendants,) the execution of which was arrested by an injunction issued in this case at the request of the plaintiffs, on the allegations, regularly sworn to, that the amount of the judgment was satisfied and extinguished by compensation, long before the suit of Robertson, Beale & Co. was instituted, and before the assignment to the defendants took place.

The record shows, that an execution having issued on said judgment against the plaintiffs, for the use of the defendants, assignees of Robertson, Beale & Co., on the 25th of April, 1843, to satisfy the sum of $10,837 88, with legal interest on the sum of $9275 from the 1st of February, 1838, till paid, and also the sum of $227 874 costs, the same was enjoined by,the appellants, who, after issue joined by the appellees, and after an unsuccessful attempt to obtain a continuance of the cause, on the 13th January, 1844. discontinued their suit; whereupon the injunction was dissolved, and the judgment complained of was rendered.

According to the 3d section of the act of 1831, whenever an injunction obtained to stay the’execution of a judgment is dissolved, the court, in the sanie judgment, shall condemn the plaintiff and surety to pay to th'e defendant, interest at the rate of ten per cent per annum on the-amount of the judgment, and not more than twenty per cent;as damages, unless damages to a greater amount be proved. We have always understood this law, as allowing to the defendant in injunction, the maximum rate of interest on the amount of his judgment, and as leaving to the discretion of the court to fix the quantum of damages which the defendant should be entitled to recover, provided those damages should not exceed twenty per cent, unless proof be adduced that he sustained damage to a larger, amount; but we have never entertained the idea-that the court was bound to allow not less than twenty per cent damages, 12 La. 125,) as the amount to be allowed must necessarily depend upon the circumstances of the case. Here, the judgment appealed from gives to the defendants in injunction, ten per cent interest upon the whole amount due them of -principal, interest and costs, at the time the execution was enjoined ; and it appears that a part of said judgment, to wit, $9275, bore already five per cent interest, and that the balance, to wit, $1562 88, 'bears none. According to the rules recognized in several of our late decisions, (19 La. 300, 317, and 3 Robinson, 128,) we must again hold that the judge, a quo, ought not to have allowed more than five per cent interest upon that part of the judgment which already bears five ; and that he should have allowed ten per cent only on the amount which bears none. We thiritt also that he erred in allowing interest upon the aggregate amount of the judgment in principal, interest and costs, as it is clear, that thereby he allows the defendants interest upon interest, which the law does not appear tp have contemplated. The law of 1831 gives ten per cent interest on the amount of the judgment, and not upon its amount, together with the interest which may have accrued thereon. As to the damages, we are of opinion that they are excessive; and that, under all the circumstances of the case, five per cent only should have been allowed. The judgment appealed from must, therefore, be corrected.

It is accordingly ordered, that so far as^ the judgment of the District Court dissolves the injunction, it be affirmed, but that as it relates to the allowance of interest and damages, it be reversed ; and it is further ordered that the defendants and appellees do recover of the appellants, in solido, five per cent additional interest per annum on $9275, and ten per cent interest per annum on $ 1562 88, from the 27th of April, 1343, until the day the injunction was dissolved ; and five per cent, damages on the said two sums formjng that of $10,837 88, which is the amount of the judgment enjoined, exclusive of interest and costs; and that the costs of this appeal be b'orne by said appellees.