47 La. Ann. 1463 | La. | 1895
The plaintiff sues on one of the notes given for the price of a stock of goods, claiming the vendor’s privilege. The defence is that there was no ground for the sequestration issued; that the note sued on was compensated to the extent of two thousand dollars, claimed to be .for an alleged violation of plaintiff’s contract not to engage in business. Tender for the residue of the amount is alleged, and there is a reconventional demand for damages claimed to have been sustained by the wrongful seizure under the writ of sequéstration. The judgment of the lower court was in favor of the plaintiff, and defendants appeal.
The defendants complain that the judgment of the lower court was changed after its rendition, so that, as it is stated in the brief, there are two judgments. It seems that in entering the judgment there was included an item of thirteen dollars instead of four dollars. To correct this the court rendered and signed the judgment for the proper amount, the correction being made within the delay for making the judgment final. This charge the defendant insists the court had no right to make. The authorities brought to our notice affirm that the court can make no substantial change in a judgment except in the mode provided by law. In one of the cases the lower court changed the judgment after its rendition in a substantial respect; in another the judgment against plaintiff was changed to one in his favor. Miller vs. Chandler, 29 An. 91; Factors and Traders’ Insurance Company vs. The New Harbor Protection Company et als., 39 An. 583. Here the change was in favor of defendant and to correct an error of nine dollars. We think it was within the power to correct the error as one not of substance. Code of Practice, Art. 547.
The ease was called for trial before Judge Potts, the additional judge for the Fifth Judicial District provided by the Act No. 146 of 1894. He recused himself, having been of counsel, and assigned a judge ad hoc to try the case. The case was thereafter taken up, and defendant then excepted to the trial before the judge ad hoc on the ground that the regular judge of the district was in a condition to perform the judicial functions. It seems that Judge Potts heard and overruled the motion, challenging the competency of the judge ad hoc, who thereupon tried the case and rendered the judgment. The defendants insists that Judge Potts had no right to select the judge
This view, too, in our view, renders unimportant the fact that Judge Potts tried the motions challenging the capacity of the judge ad hoc, and it seems it was at defendant’s instance that Judge Potts presided on that occasion.
The reconventional demand for damages is based upon the alleged absence of cause for the writ of sequestration. The statute authorizes the writ when the debt and privilege exists and the defendant fears the plaintiff will conceal, part with or dispose of the property on which the privilege exists. The maturity of the debt, that it was unpaid, and the fact that defendants were selling the property, though in due course of business, afforded the basis for the writ. Code of Practice, Art. 275, as amended; Lowden vs. Robertson, 40 An. 825.
The defendant pleaded in compensation the amount of the penal obligation of the plaintiff not to engage in business. The penal obligation is, of course, conditional in its character, and if susceptible
The judgment in this case allowed ten per cent, on the amount recovered, of which defendant complained, but that stipulation was in the contract.
It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with costs.