Pattison v. Edmonston

4 La. Ann. 157 | La. | 1849

The judgment of the court was pronounced by

King, J.

Carter <S¡- Co. having obtained a judgment against the present plaintiffs, issued a fieri facias, .the execution of vyljich the plaintiffs enjoined, alleging that the judgment was illegally rendered, for various reasons stated in their petition. The injunction was, on a trial conducted in the absence of the plaintiff’s counsel, dissolved with claineges. The plaintiffs thereupon took a rule on the defondants ¡to show .cause why a second -trial should not be granted, and further to show cause, in the event ,of the said trial -being refused, why the judgment in favor of Carter 4' Co. should not be declared satisfied ¡and extinguished by compensation, the plaintiffs having become the owners of a judgment against Carter 4- Co. for a larger amount. The rule was discharged, without prejudice to the right of the plaintiffs to sue out an injunction for any offset which they might have to oppose to the judgment of Carter 4‘ Co. against them. The plaintiffs have appealed.

We think that the judge erred in discharging die rule. As regards the regu-, larityof tho proceedings anterior to the rule, it is unnecessary to express onopinion. The plaintiffs are disposed to waive die alleged irregularities, if they exist, and -to rely on their plea of compensation, which we think ought to have been sustained. Subsequently to the rendition of the judgment in favor of Carter 5f Co. against thorn, they purchased a judgment for a larger amount, rendered in favor of other partios against Carter 4* Co., and die latter were notified of the transfer. From the date of -the notice the parties became mutually indebted, their respective claims were equally liquidated and due, and compensation took place, -the effect of -which wqs to extinguish the judgment of Carter &¡• .Co. G. C. art. 2203.

The plaintiffs would have been entitled to an injunction on this ground, and no reason has been suggested why effect should not have been given to the plea of compensation on the trial of the rule, when the parties were before the court with their evidence, instead of driving the plaintiffs to an injunction to accomplish the same end. It is proper to observe that no objection was made to the proceeding by rule.

The judgment of tho District court upon the rule to show cause why the judgment of Carter 4' Co. against the plaintiffs should not be declared satisfied by compensation is reversed, and it is ordered that the said judgment of Carter 4‘ Co. be satisfied and extinguished by compensation. In other respects tho judgment appealed from is affirmed, the defendants paying the costs of this appeal, and the plaintiffs those of tho costs below, with tho exception of the costs on the rule, which ar.e to be borne by the defendants.