2 La. Ann. 360 | La. | 1847
The judgment of the court was pronounced by
The plaintiffs enjoined the proceedings under a writ of fieri facias, issued on a judgment obtained by the defendant, Elizabeth Kemp, tutrix, against the plaintiff, Rowly, which weihave recently had before us, anto p. 316, The injunction was dissolved, with twenty per cent damages on the amount of the execution enjoined, and five hundred dollars special damages and costs. The plaintiffs have appealed.
I. The principal ground on which the injunction was obtained, related to the irregularity of the proceedings of the sheriff in the execution of the writ subsequent to the first exposure for sale of the property seized. The defendant, Charles N. Rowly, as attorney in fact of Lansing, bid for it, and it was adjudicated to him, and he not complying with the terms of the sale, the sheriff re-advertised the property for sale, treating the acts of Rowly, attorney in fact, as nullities, as he was bound to do, for his conduct throughout shows that his sole object was to embarrass the proceedings of the sheriff, and defeat the pi’ocess of the court, It is well settled that, having made a seizure, the sheriff was not bound to return the writ, unless required by the plaintiff, but might proceed to sell under the seizure, notwithstanding the expiration of the return day of the Writ, the failure to sell not having been attributable to the plaintiff. Dugat v. Babin, 3 Martin, N. S. 393. Labiche v. Lewis, 12 Robinson, 8. The objection to the regularity of the proceedings under the writ, as well as the reasons given for Roioly’s refusal to comply with his bid, we consider untenable.
II. In the judgment of Elizabeth Kemp, tutrix, on which the execution issued, there was a credit of $1,000 allowed, to take effect from the 11th March, 1841. This credit, instead of being written in .the body of the writ, was endorsed on it, in the terms of the judgment, under the certificate of the clerk and the seal of the court. This error, if it be one, which We do not admit, could furnish no ground for enjoining the execution, for its whole amount, upwards of $60,000.
III. It is urged, on behalf of Rowly, that the whole of the judgment was not due, and that such has been the decision of this court on the appeal in that case. This is true. We reduced that judgment $1,300, on account of credits ■which we thought ought have to been allowed to Rowly. But Rowly did not stny the execution on appeal which he took from that judgment by giving bond and surety, and thereby authorized the issuing of the execution. He did not present this as one of the reasons for which he asked for the injunction; he did not allege that the debt was not due to the plaintiff in execution. But, in any event, the extent for which Rowly could claim relief, would be for the amount by which the judgment was reduced, and affords no reasonable excuse for enjoining the proceedings for the recovery of the balance of it.
IV. But there are other parlies besides Roioly, who are plaintiffs. His alter ego, Jacob L. Lansing, and Samuel Rowly, of the State of New York, Hamilton M. Wright and JamcsWright, of the city of New Orleans, unite with Rowly in defeating the recovery of the plaintiffs’ debt. Both Samuel Roioly and Lansing are, or appear to be, purchasers of the Marengo plantation and slaves, at sheriff’s sale, at different periods, and the only relations they ought to have in this controversy are as stakeholders of the price.
V. Hamilton itf. Wright and James Wright assign, as their grounds of application, that they purchased the judgment of (he Mechanics' and Traders' Bank, and have become subrogated to all its rights, and that under their execution the
It appears that these parties instructed the sheriff, through their attorney, Ikfr. Frost, whois also thesole attorney of Rowly, and the surety, in the injunction bond, if Samuel Rowly should become the purchaser of the property at sheriff’s sale, to dispense with his giving any security on the twelvemonths’ bond for the purchase-money, which was accordingly done. There i&evidence before us which authorizes the belief that this .judgment was- assigned to the Messrs. Wright, for the purposes of Rowly, and that the consideration of the transfer from the bank came from him-.
It is urged that, pending the appeal from the original.judgment, the defendant in this suit and plaintiff in the other,, had no right to'enforce the mortgage by executing the judgment, and that the court has recognized the rank of the-mortgage of the Mechanics’ and Traders’ Bank, adversely to the rank of the minors’ mortgage, on which the bank had taken a suspensive appeal. The appeal was suspensive only as to the rank of.the mortgages. The order granting the appeal expressly provided that,, the execution of the judgment against Rotoly and Lansing should not be suspended. The bank was interested in the distribution of the proceeds of the property mortgaged; but no case is before us in which it was authorized to enjpin the sale of the property mortgaged to the minors, which extended, only to one-third of- the plantation- and slaves, while-that in favor of the bank extended to the whole, and amounted only to the sum or $9,383 22, with interest. 6 Mart. N. S. 615. 7 Ib. N. S. 281.
Tho judgment appealed from was against the plaintiffs in solido, and the' surety, for §>12,000, being twenty per cent on the amount of the principal and interest of the judgment oi'Elizabeih Kemp,, tutrix, and of the execution enjoined, and five hundred dollars special damages, incurred for expense-of counsel feos.
Tlie amount of the injunction bond is only §!5,000! A party applying to a court to suspend its process, which had- become embarrassed with difficulties which he himself has been instrumental in creating for his own special benefit, ought to. present a clear legal case, to protect himself from the payment of damages to the injured party. The law authorizes the court to-impose them on the dissolution.of injunctions wrongfully sued out. The maximum rate which the court has power to assess is high — very high; but the abuse is great which the law intends to remedy.- It endangers the security of property, as well as-the proper administration of justice, and it is our duty to repress all attempts to defeat the execution.of judgments upon frivolous or fraudulent pretexts. We consider that there was no pretence on- the part of Rowly to arrest this execution, and those who have lent their names for. the furtherance of his purposes,, as we think the other plaintiffs have, cannot complain if they are treated as his instruments, and amerced accordingly. The original judgment bears ten percent interest, and we trust the delays will not be long ere the minors shall be-restored to their rights. The injunction was granted in Jan. 1846, and we think twenty per cent damages too high, under the circumstances.
It is therefore ordered that the judgment appealed from be reversed, and that the defendant recover from the plaintiffs in solido, and John W. Frost? their surety, the sum of five thousand dollars, with costs; the defendant paying the costs of this appeal.
