8 Rob. 22 | La. | 1844
This appeal is taken from a judgment refusing to grant the injunction, applied for by the plaintiffs with the view of arresting the execution of a judgment rendered against them in favor of Robertson, Beale & Co'. The appellants state in their petition, that the execution which they seek to enjoin was issued in favor of William A. Hardaway, residing in Mobile, and of the Bank of Mobile, in the suit entitled “ Robertson, Beale & Co. v. F. de Lizardi & Co.,” (the applicants,) wherein the appellees claim to be assignees of the plaintiffs and owners of the judgment rendered therein, under which they threaten to seize and sell the appellants’ property, to an amount of $13,940. The appellants deny the legality and validity of the assignment, or that any valid consideration was ever paid by the ' transferees therefor. They further represent that before the assignment, and even before the institution of the suit in which the execution sought to be enjoined was issued, the firm of Robertson, Beale <fc Co. was indebted to them in a large amount, to wit, in the sum of $11,292 92, being the amount of two bills of exchange drawn on the 17th of February, 1837, by the said Robertson, Beale & Co., each for the sum of one thousand pounds sterling, in favor of Andrews & Co., on the house of Morrison, Cryder & Co., of London, payable sixty days after sight, transferred to appellants by the endorsement of Andrews & Co., and others. The bills,
The judge, a quo, based his refusal on the ground that the debt pleaded in compensation does not appear to be equally liquidated and demandable with the judgment against which it is opposed, and this perhaps would be sufficient to defeat the plaintiffs’ attempt to arrest the execution of said judgment; but as the parties have thought proper to test their rights before us under the question, whether the appellants can be allowed to enjoin the execution complained of, on grounds of defence which existed and might have been pleaded before the judgment, we shall proceed to inquire whether a party who shows that he suffered judgment to be rendered against him, without pleading a compensation, which he had then and before, the right of opposing against his adversary’s demand, can be subsequently permitted, not only to set up said compensation or set-off in a separate suit, but also to enjoin the execution of the judgment obtained against him.
The affirmative of this question has been strenuously urged by the plaintiffs’ counsel, who, in support of his position, has referred us to several very respectable French authorities, which appear to sustain him, and to several decisions of this court, among which he relies particularly on the case of Caldwell v. Davis, 2 Mart. N. S. 135.
It is true that in the case of Caldwell v. Davis, this court seems to have adopted the rule recognized by the French jurists therein quoted, that compensation may be opposed even after judgment, and that it may be sd opposed to the execution of the judgment; but the claim which was the subject of the controversy was not in existence, that is to say, did not belong to the party defendant until after the judgment had been rendered, and the real question which this tribunal had then to consider, was,
But under the provisions of th.e Code of Practice, and in the. present state of our jurisprudence, can it be pretended, that the question here presented is yet unsettled ? By art. 367 it is provided that, “ the defendant may plead compensation, or set-off, at every stage of the proceedings, provided it be pleaded specially and art. 368 says that, “ it may be plea’ded either in the answer to the principal demand, or by a distinct and separate demand.” Thus it is clear that our laws recognize two modes of pleading compensation, one by exception, and the other by a distinct and separate suit. But the demands must be set up simultaneoffsly, before the same tribunal, and according to the rules set forth in arts. 369, 370, 371 and 372 of the Code of Practice. By the
Now, as far back as the case of Lafon's ex'r v. Dessessart, 1 Mart. N. S. 71, this court decided that, “it is not in the power of an inferior court to deprive a party, in whose favor it has rendered judgment, of the benefit which results from it, on the allegation of any fact that might have been opposed to him and prevented his obtaining judgment.” Our jurisprudence is uniform upon this subject; and this shows that the case of Caldwell v. Davis, 2 Mart. N. S. 135; was decided upon a different state of facts and circumstances, which the tribunal considered sufficient
Judgment affirmed.