35 La. Ann. 157 | La. | 1883
Reduced to its simyilest. elements the cause of action presented on these ayipeals is the following:
The action is brought, by “James Ford and Justine Ford, his wife, separate in property, ” (as alleged.)
The gravamen of the injury complained of is the illegal seizure and detention of certain movables belonging to the wife and under her separate administration, in execution of a writ offi. fa. issued upon .a judgment rendered against the husband alone.
The action sounds in damages and is brought against Sanchez, plaintiff in the judgment, Cain, the justice of the peace who rendered it, Brooks, the constable who executed it, and his official sureties, Lambert and Montagnet.
Conspiracy is charged between Sanchez, Cain and Brooks, and yarir ous circumstances of aggravation are set out.
It is alleged that the movables seized were used by Mrs. Ford in carrying on the business of making and selling candy. The inventory, however, made at the time and confirmed by the receipt of plaintiffs, endorsed on the back thereof, shows that the movables seized were two common armoirs, a common wooden table, several chairs, several pictures, two common clocks and a small show case.
The elements of the damage charged to have been occasioned by this illegal seizure are : T, injury to the reputation, credit, commercial and individual standing of the plaintiffs; 2, injury to the business of Mrs. Ford and suspension thereof for several days; 3, exposure of her husband and children “ to the public gaze, to the great yiersonal mortification of all of them;” 4, “ trouble and expense of hauling her property thus seized back to her residence.”
Judgment was prayed for against the defendants in solido, in favor of James Ford for $2,000, and' in favor of James and Justine Ford, for the separate use and benefit of the latter and her children, for $5,000,
After trial, judgment was rendered in favor of Mrs. Justiue Ford, wife of James Ford, against all the defendants except Cain, in solido. A new trial was granted to the sureties but refused as to Brooks and Sanchez. On this new trial judgment was rendered in favor of the sureties and against the plaintiffs, as in case of non-suit.
Brooks appealed from the judgment against him, and the plaintiff's appeal from the judgment in favor of the sureties. The two appeals are submitted together for our determination.
I.
As to the judgment against Brooks, in favor of Mrs. Ford, alone and personally-,!!; must inevitably fall under the proof, and, indeed, admis
It is perfectly evident that the business conducted by Mrs. Ford, whether alone or with the assistance of her husband, was the business of the community resulting from her marriage, and that all the acquets and gains thereof fell into the community, and that all injuries to said business were community injuries.
As to injuries to the reputation, credit, commercial and individual standing and feelings of either of the spouses, these clearly give rise to personal actions of which the husband has exclusive control, under Art. 107 of the Code of Practice.
All the injuries and damages complained of are of a character which could be vindicated only in the name and right of the husband, as head of the community, and for which the wife is incapable of standing in judgment.
See on this general subject, Cooper vs. Cappel, 29 An. 213; Cowand vs. Pulley, 9 An. 12; Barton vs. Kavanagh, 12 An. 332; Holmes vs. Holmes, 9 La. 350.
Had the action been for damages to the paraphernal property itself seized, and separately administered by her, the case might have been different, but no such damages are alleged or proved.
The movables seized are not of a character requiring administration, or which could be supposed to produce any revenue. They cannot be assimilated to a plantation or like revenue-producing property, the profits of which, when paraphernal and separately administered by the wife, belong to her.
The fact that a merchant owned, before marriage, his counting room furniture, surely would not avail to prevent the earnings of his business from falling into the community; a like principle applies here.
It is obvious that the business here conducted by the wife was one based essentially on her labor, skill and industry, the product of which necessarily fell into the community.
.The judgment having been rendered in favor of the wife alone and the husband not having appealed, we must reverse it, and are powerless to examine into questions as to the right of the husband to recover.
II.
•The judgment in favor of the sureties was clearly correct. No evidence whatever was offered on the new trial in proof of the damages claimed, except the judgment against Brooks, and it is clear that the judgment rendered against their principal, which we have just re
It is, therefore, ordeml, adjudged and decreed, that the judgment herein rendered in favor of Mrs. Justine Foi'd and against W. H. Brooks, be annulled, avoided and reversed, and that there be judgment in favor of said Brooks, rejecting her demand, with costa in both Courts.
And it is further ordered and decreed, that the judgment in favor of Lambert and Montagnet, sureties, be affirmed, at cost of appellants.
Rehearing refused.
