4 La. Ann. 503 | La. | 1849
The of court was
B. B. Hart and Labadie and Jaquelin obtained judgments against Gamard, and caused writs of fieri facias to issue, under which the sheriff seized a slave. The plaintiff, representing his minor child, George Alfred, instituted this action to enjoin the execution of the writs, alleging that the slave seized be-longed to his minor son, in virtue of a donation from one Valletli, duly accepted.The defendants, in their answer, aver that the pretended act of donation is simu-lated and fraudulent, and was made for the purpose of placing the slave beyond them pursuit. They pray for a dissolution of the injunction, with damages-. ■The cause was submitted to a jury, who returned the following verdict: “We, the jury, find for the defendant.” A judgment was thereupon rendered dissolving the injunction, and condemning the plaintiff, and his- surety on tha bond, in solido, to pay ten per cent per annum interest on the amount of the judgment enjoined, fr-om the date of the injunction, witii fifty dollars damages as counsel fees, and the costs of suit, from which the plaintiff has appealed.
The facts, as they appear from the evidence, are briefly these: Alphonse Gamard, the father, originally purchased the slave in controversy, in 1840. In 1843, but a few weeks previous to making a cession of his property, by a private act, admitted to record after the filing of his surrender, he sold the slave to Valletti, for $400, acknowledging to have received the price in cash. In September, 1845, Valletti made the alleged donation to the minor George Alfred. Gamard was a country merchant, doing a very limited business. He was insolvent, by his own admissions in his proceedings on his surrender, at the date of his sale, and continued to be much embarrassed in his affairs at the date of the donation. Valletti was his clerk, not possessed of the means necessary to make the purchase, and receiving, according to the testimony, a salary not exceeding twenty five dollars per month. The donation was made about the time that Valletti was leaving the country. No change of possession is shown to have followed any of the acts, Gamard appearing to have always remained in possession from the date of his purchase in 1840. This testimony, we think, authorized the conclusion of the jury that, the sale from Gamard, and the donation from Valletti, were simulations.
But it is contended that, the district judge erred in allowing interest, and counsel fees, which were not authorized by the verdict.
It is not important to enquire whether the judge possessed the power, under the act of 1831, to award interest and damages on the dissolution of the injunction, notwithstanding the silence of the verdict on these points; as the whole case is before us upon the evidence, it becomes our duty to render such a decree as, in our opinion, should have been rendered in the court below, and to allow such damages as the defendants may be entitled to.
We think that the judge erred in awarding ten per cent interest on the amount of the judgments enjoined, as both of the judgments previously bore interest at that rate. 19 La. 303. 3 Rob. 123. The judge must have considered the defendants entitled to damages, which were allowed as interest; and, in concurring with him in that opinion, we will give the defendants ten per cent as general damages; also fifty dollars, special damages, for counsel fees, which the evidence shows to be reasonable.
It is, therefore, ordered that, so much of the judgment appealed from as condemns the plaintifT, and his surety, John Kirley, to pay interest at ten per cent per annum on $1581, from the 6th day of March, 1847, until paid, with $50 damages, for counsel fees, be reversed. It is further ordered that, the defendants Bernard B. Hart, and Lahadie and Jaquelin, recover of George A. Gamard, represented by Alphonse Gamard, and his surety, John Kirley, in solido. one hundred and fifty eight dollars, being ten per cent as general damages on the amount of the judgments enjoined, and the further sum of fifty dollars as special damages for counsel fees, and the costs of the low'er court. In other respects, the judgment appealed from is affirmed; the appellees paying the costs of this appeal.
