Smith v. Brownson

19 La. 313 | La. | 1841

Garland, J.

delivered the opinion of the court.

From the allegations in the petition in this case, it would appear, the object of the petitioner is to obtain the nullity of a judgment, which the defendant had previously obtained against him, for alleged ill practices on the part of the counsel of defendant in the trial of the case, and the illegal acts of the judge during the trial; but when we look to the conclusion, we find no prayer for annulling the judgment, but only for an injunction and damages. The answer as well as the petition is of great length, and puts at issue the various allegations, and 6 , r -i among other matters alleges, that the most material matters and things, upon which the injunction was claimed, existed' previous to the suit of defendant against plaintiff, and were at issue in that case, or should have been pleaded in it; and as the plaintiff failed to set them up, it is not a ground for injunction ; he also puts in the plea of res jucliccita. The defendant further says, if there is any thing else not covered by his former pleas, the plaintiff might have been relieved by an appeal in the suit of Brownson vs. Smith, which he has never prosecuted.

It appears, that the suit of defendant against plaintiff; was for the purpose of enforcing two judicial mortgages, which affected a tract of land purchased by the latter, who was a purchaser in good faith, without notice. On the trial of the cause, the plaintiff (now defendant) offered in evidence what purported to be a copy of one of the judgments, and a certificate of its being recorded. The defendant’s (now plaintiff’s) counsel objected to the introduction of this document in evidence, on the ground, that the allegation in the petition was, that the judgment allowed interest on $521, from a certain date, and the copy produced said $571. The record book from the recorder’s office was then brought into court, which showed the judgment had been originally recorded as for $571; the original judgment was then referred to, and it was found to be $521, as set forth in the petition. The clerk of the recorder of mortgages, who had inscribed the judgment, being then in court with the record book, stated, that it was a clerical error committed by himself, in using the word seventy for twenty, the former word being used in another part of the judgment; whereupon the counsel for plaintiff (now defendant) moved the court to permit the clerk to correct the error in the book and copy, so as to make them conform to the original judgment, which the judge permitted, and then received the document in evidence. This alteration took place in open court in the presence of the judge and partios, the counsel for the defendant (nqw plaintiff;) objecting and saying, he- would take a: bill,of exceptions, which it was agreed he should, write out-and present to, the judge for. his signature, before he left the judicial district, in which he was then.presiding. The trial proceeded, a,nd, the judgment now enjoined was rendered. As soon as .the trial was, over. and-judgment, rendered, the.counsel for plaintiff (now defendant) took.into possession the copy of the judgment offered in evidence, and some other, documents, on which they relied in .the, trial, and kept them, alleging they had not been filed, and they were entitled to them, in’consequence of which the plaintiff now alleges, his counsel could not draw, up the bill, of¡ exception he intended to take. It does not,appear, at what time the counsel for plaintiff applied to the opposing counsel for the.documents, so as to draw his bill of exception, but it appears, he did not submit his. bill to them until some months after, when the judge had left the district; the counsel for the .present defendant then declined consenting to its being signed, saying their consent did not extend so.far, and the counsel for the present plaintiff insisting, that it ought to he signed,, as he had been prevented fro.m making it out by their detection ,of the papers ; the consequence was, no exception was.taimen 01; appeal asked for, so far as the .record shows — and thp plaintiff (now defendant) proceeded to,execute his judgment, when,this.injunction was issued.

It is np.t necessary to go into a further examination of the difference of opinion between the counsel as to the right.to take papers into possession, and wedismiss.it with the remark, that .as .a, general rule documents used in evidence ought not to be withdrawn, without the consent of the opposing counsel or the co.urt, although,the word filed, may n.ot.be endorsed, on them.

If t(ie. conduct.of the judg.e , was. illegal in permitting the alteration, of.the, record hook, and-the copy, produced as evi-dpnce,, which,, we.-dp not decide on;,, w,e-are satisfied it was nplirngj m,oré .tharr.a .legal error, wjth.QU.t, the, slightest improper motive on hjs, part. The alteration, being made' by. permission of the court, and in presence of all the parties, shows there . was no such fraud or ill practices on the part of the party or his counsel as would annuli the judgment according to article 607 of the Code of Practice. Had the defendant, in the judgment enjoined, taken an appeal, and brought his case before us in such a manner as to have had the question examined by us, or have enabled, us to have had the whole matter brought up, a serious question might have arisen, whether the judgment which was altered, was properly recorded previous to that alteration, so as to have effect against third persons ; but as he has not done so, we do not think there is sufficient ground to maintain the injunction.

Where ajudg-“P'í yj11®]1 ls enjoined airea-t>eai's in-terest at ten per cent, per an-i™teres° can be ¿;ssXtion°n of lIle injunction; Interest on the dissolution of an injunction may be increased to ^laXer^’else against the plaintiff and his surety in injunction, should damafes?11

The counsel for the plaintiff says, that he could not have brought up an appeal in the case of Brownson vs. Smith in such a way, as to have presented the questions at issue, in consequence of the counsel for Brownson withdrawing the documents offered in evidence. We think he could. If the papers were improperly or illegally withheld, be had only to move for a rule on the counsel to show cause, why they should not file them in court, and it would have been ordered, if necessary. If that mode had not been effectual, we could, if the case had been brought before us, and we were convinced, that injustice had been done, have remanded the cause for a new trial.

The counsel for plaintiff contends, the judgment of the in-jo ferior court must be reversed, as the judgment dissolving the ... ' injunction allows ten per cent, interest per annum on the whole amount of the judgment, enjoined from the day of issuing to its dissolution, whereas the judgment already bore ten per cent, interest per annum. We have already said in several . . . cases during this term, that where a judgment enjoined hears . . . . ... interest at ten per cent, per annum, we will not increase it; but whatever else may be allowed against the plaintiff and his surety, should he given as damages. Vide McCarty vs. McCarty, ante 300. Where judgments do not hear ten per cent, , . . per annum interest, then perhaps the interest may be increased to that rate, if dissolved, from the date the injunction issued, until payment.

The judgment of tlie District Court is therefore annulled, avoye¿ an¿ reversed so far as it condemns John Smith, the plaintiff, and Daniel P. Sparks, his surety, to pay interest at r ■ c . the rate of ten per cent, per annum on the sum ox nineteen jlun(jre(j an(j gixty-two dollars, and eighty-three cents, from the 5th day of April, 1839, until the dissolution of the injunction, and in all other respects affirmed- — the plaintiff paying the costs in the District Court; those of the appeal to he paid by the defendant and appellee.