Lafleur v. Mouton

| La. | Sep 15, 1852

Rost, J.

A judgment was regularly obtained on behalf of the State, against the plaintiff, as surety on a forfeited recognizance given by Olivier Lafieur. He appealed from that judgment, but failed to give bond during more than twelve months, and the judgment thus became final. Execution having issued upon it, and property of the plaintiff having been seized, he obtained an injunction, alleging that the recognizance did not state the cause for which it had been taken, and that judgment was improperly rendered against him on that ground.

It is manifest that this was a defence to the merits known to the plaintiff at the time the judgment was obtained against him, and consequently no legal ground for an injunction; but on the trial of the case, the counsel for the plaintiff gave in evidence the indictment charging Olimier Lafieur with an attempt to commit a rape, and at the same time offered legal evidence to prove that since the institution of this suit the accused had surrendered himself; had stood his trial, and had been acquitted; which was objected to on behalf of the State, and the objection sustained by the Court on the ground that the pleadings did not authorize the admission of the evidence. This is strictly true, but as we have no reason to doubt the truth of the facts alleged, and they are sufficient to authorize the injunction of the judgment, ive feel bound to adhere to the rule, not to dismiss an injunction when we believe that the plaintiff would be immediately entitled to the same remedy. See the case of Exiniceas v. Dies, 3d N. S. 480; Chambliss v. Atchison, 2d Ann. 488; Dorcey v. Hills, 4th Ann. 107; Gillespie v. Police Jury, 5 Ann. 406.

If the accused has been fairly tried and acquitted, which we do not understand to be denied by the counsel for the State, the State has no further claim under the recognizance, although it may have ripened into a judgment. See 7th An.

We have concluded to remand this case, with leave to both parties to amend; but as the costs attending this disposition of it are attributable to the plaintiff’s neglect, relief is granted to him upon condition that he shall pay those costs.

It is ordered that the judgment be reversed, and the case remanded for further proceedings, with leave to both parties to amend, the plaintiff paying all the costs incurred up to this date.