41 La. Ann. 311 | La. | 1889
Tiie opinion of the Court was delivered by
We are clearly without jurisdiction to revise the judgment on the principal demand in this ease, which is an action to recover $251 41 with interest and costs, coupled with a prayer for the revocation of a sale of certain property and also for a recognition of a vendor’s lien. The value of the property, the sale of which is sought to he revoked and on which the privilege is claimed, is hot the measure
Nor do wo acquire jurisdiction over the principal demand because the defendant has filed a claim in recovention which may be appealed to this Court. Defee vs. Covington, 37 Ann. 659; Colombo vs. McQuaid, 36 Ann. 370; Goldman vs. Roos, id. 132; Lamorere vs. Avery, 32 Ann. 1008.
The reconvention al demand is in the nature of an action for-malicious prosecution of the principal suit. The latter was not accompanied by any process disturbing the defendants’ rights of person or property.
The petition contains allegations of fraud, of impoouniosity and other charges certainly not creditable or agreeable to defendant and tending to injure his credit and reputation and to wound his sensibilities. But we fiad therein none not strictly pertinent to the cause of action and conducive to the relief sought.
The law expressly authorizes such actions and formulates tire grounds on which they may be brought. Partios, who believe they have such grounds of action, have the right to embody them in the judicial petition, without'whioh they coirld never vindicate their rights.
In actions for the malicious prosecution of such a suit, they can only he held responsible in damages on the same grounds which are requisite to sustain an action for malicious prosecution of any other civil suit, and those require clear proof of two concurring facts, viz: First, want of probable cause and second legal malice..
This record fails to furnish such proof. On the contrary we observe the significant fact that, prior to the filing of the petition in this case, other judgment creditors of Hardie Bros, had attacked the sales of de-* fondant, Johnson, as fraudulent simulations, by directly seizing the property sold; and that Johnson, in an injunction suit brought by him to restrain said execution, set up against those parties the same claim for damages which he now propounds against the present plaintiffs.
He then claimed that those damages were occasioned by the seizure of his property which took place before this suit was brought. He now claims that they were occasioned by the instant suit. It further appears that, on issue joined in the injunction suit, the injunction was dissolved and the sales wore declared to ho fraudulent simulations. On appeal to this Court the judgment was reversed on the ground that the sales were not mere simulations, reserving the right of the creditors to bring a revocatory action, That action was subsequently brought and presented
It certainly cannot be claimed that a cause of action, which lias been sustained by two judgments of a competent court, presents such' want of probable cause as would support an action for malicious prosecution.
This view is further confirmed by tho fact that several other actions of identically the same character have been brought by various creditor's, and against them also Johnson has propounded the same claim for damages.
We think the reconventional demand lias no foundation.
It is, therefore, adjudged and decreed that the appeal on the principal demand be dismissed and that the judgment on the demaud in reconvention be affirmed.
