| La. | Apr 15, 1858
Lead Opinion
The plaintiff, Donnell, sued defendants, at their domicil in the parish of St. Landry, for a debt alleged to be due for plantation supplies.
Donnell was then, and now, a resident of New Orleans.
He claimed then $586 53, with interest.
Wm. H. Parrot answered by a general denial. His wife filed a separate answer, averring that she owed Donnell nothing, but that .he was indebted to her in a large amount, which she plead in reconvention.
When the cause came on for trial before the court in St.-Landry, the plaintiff, Donnell, moved to discontinue, and the court awarded judgment, dismissing the cause without noticing Mrs. Parrott’s reconventional demand.
She appealed, and this court affirmed the judgment of the lower court, so far
The cause went back to the District Court in St. Landry for re-hearing on the reconventional demand of Mrs. Parrott, and was tried contradictorily with Donnell, and there was judgment in favor of Mrs. Parrott for $6,831 50.
Prom this judgment Donnell took a suspensive appeal and this court affirmed the same.
On the judgment thus affirmed the court in St. Landry issued ajft. fa. against Donnell, directed to the Sheriff of the Parish of Orleans, where he resided.
Donnell sued out an injunction against it on the 3d October, 1856, in the Fourth District Court of New Orleans.
The petition of injunction avers that plaintiff, as commission merchant, received and sold defendants’ crops, and afforded supplies for the plantation.
Plaintiff further alledges therein that the statement of accounts between them on the 15th April, 1854, showed a balance in his favor of $586 63; that he brought suit for this amount; that his suit was dismissed without his knowledge, and the reconventional demand was prosecuted against him without his knowledge ; that being ignorant of the reconventional demand, he did not set up that it had been extinguished by compensation by operation of law; that in consequence of Mrs. Parrott’s judgment against him, she is really indebted to him in the sum of $7,213; he prays for an injunction against Mrs. Parrott’s execution ; that Mr. and Mrs. Parrott be cited to appear before the Fourth District Court of New Orleans to answer his petition; that his claim of $7,213 67, against them, be declared to be due, liquidated and demandable ; that Mrs. Parrott’s judgment be declared to be extinguished by compensation; and that he have judgment against Mrs. Parrott for $586 53.
In accordance with the prayer of the petition, an injunction, staying her execution, from the District Court of St. Landry, was at once issued by the Fourth District Court of New Orleans.
Mr. and Mrs. Parrott excepted to the jurisdiction over them of the Fourth District Court of New Orleans, on the ground that their domicil was in the Parish of St. Landry.
This exception was dismissed, as to the amount pleaded in compensation, but sustained as to any excess over it.
There was judgment in the lower court in favor of Donnell and against Parrott and his wife in solido for seven thousand two hundred and sixty-seven dollars and fifty cents and interest, and that the judgment rendered by the Fifteenth Judicial District Court of the Parish of St. Landry in favor of Mrs. Parrott and against Donnell for $6,836 50, with interest, be decreed to be extinguished by compensation, and that the injunction herein issued be made perpetual, and that Parrott and his wife, and the Sheriff of the Parish of Orleans, be forever enjoined from proceeding any further under the execution issued from the aforesaid Fifteenth Judicial District Court, at the suit of said Donnell against Parrot and wife, No. 7315 of the docket of said court, and that defendant pay costs of suit.
From this statement of facts we deduce two reasons, either of which is sufficient to cause the judgment to be reversed.
The amount, $586 63, originally sued for by Donnell, and the $7,267 50 claimed by him in the injunction suit, grew out of the relations of the parties as factor and planter, and had their origin in similar reciprocal transactions between them. These contestations could all have been liquidated and decided in the suit in St. Landry.
Donnell could have had his original claim for $586"63 adjudicated upon, and if his averments in the injunction suit are true, he could also have shown that the reconventional demand of Parrott and wife had' been compensated by advances made by him.
We are of opinion, that when claims have thus a cognate origin and one of the parties has failed to set up any sufficient defence, he cannot enjoin an execution on a judgment between the parties by application to any other court than that from which the writ issued, even if he can do it in any such case. Oyer v. Daunoy, 7 N. S. 658.
An adverse doctrine would unnecessarily protract the administration of justice, and put parties to useless expense. Cuvillier v. Turnbull’s Heirs, 8 M. 63. C. P. Art. 373.
The court of St. Landry, in its judgment, reserved the right of Donnell to set up his claims, if any he had, in a separate suit, and we think this is the proper course at present, in the event he has any legal demands against Parrott and his wife.
The judgment enjoined bears 5 per cent, interest. We allow 3 per cent, additional interest from the 3d October, 1856, the time of issuing the injunction, until the ,5th April, 1858, the period of dissolution of the injunction. We think that under the circumstances of this case, no other damages ought to be allowed.
It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed; that the injunction be dissolved with three per cent, additional interest, as damages, on the amount of the judgment enjoined, to wit: on six thousand eight hundred and thirty-six dollars and five cents, from the 3d October, 1856, until the 5th April, 1858. It is further ordered and decreed, that the Sheriff of the Parish of Orleans proceed, according to law, to execute the fi. fa. transmitted to him, and which was hitherto enjoined by this suit, and that plaintiff in injunction pay the costs of both courts ; and that the right of Donnell is reserved to prosecute his claims in a separate and. distinct suit, if any he has.
Concurrence Opinion
concurring. The cases in which this court has sanctioned injunctions issuing in other parishes than those where the judgments were rendered, were those in which manifest injury would have been done had they not been allowed. In the language of the court, they were allowed ex necessitate rei. 4 N. S. 390. Lawes v. Chinn, 7 N. S. 659. Ogier v. Daunoy, 2 An. 323. Hobgood v. Brown, 4 An. 84. It was not the intention of the court to expunge from the Code of Practice Articles 617 and 629, giving the court, rendering the judgment, jurisdiction over its executions. Now, in the case before us, there does . not exist the necessity referred to, nor can the doctrine of those cases be reason
The penalty for neglecting to oppose compensation is prescribed by Article 373, C. P., which is in these words :
“ Art. 373. If the defendant suffer judgment in the original suit, without pleading such compensation as he may have to oppose, as provided above, he shall not on that account lose his right of action to recover whatever amount such plaintiff owes to him, but lie must bring his action before the court within whose jurisdiction the plaintiff has his domicil." See also 8 L. R. 104, 273; 9 Bob. 165; 1 An. 284; 5 An. 670.
If such be the penalty for not opposing compensation, it cannot be less where the party voluntarily withdraws the consideration of his demand from the court. For reasons which are obvious, he must be considered as having waived his right to oppose the judgment on those grounds.