Stanbrough v. Scott

1 Rob. 43 | La. | 1841

Bullard, J.

Lillard having recovered a judgment against David - Stanbrough and others, caused a writ of fieri facias to be issued, which was levied by the sheriff upon certain slaves. Thereupon Jesse Stanbrough obtained an injunction to stay proceedings, on the allegations that the slaves seized were his property, and in his possession, and that his title to said slaves had been duly recorded.

The defendants moved to dissolve the injunction upon the following grounds: 1st. The affidavit is insufficient as it only attests the allegations of the petition, and does not attest that the fads set forth in the petition are true and correct. 2d. The petition was improperly addressed to the district court, it should have been to the parish judge. 3d. The injunction is not made returnable in the district court as required by law. 4th. The bond does not appear to have been properly executed, it bearing date five days before the petition was filed. 5th. There is no showing that the district judge was absent, which fact should have been made to appear by affidavit.

These exceptions appear to have been sustained and the proceedings dismissed. The plaintiff in injunction appealed, and assigns as error apparent upon the record, the sustaining of said exceptions. The appellee prays that the judgment may be amended so as to give him damages on the dissolution of the injunction, according to the act af 1831.

I. The petitioner made oath * that the allegations set forth in the foregoing petition are true and in his opinion render an injunction necessary.’ We cannot distinguishbetween the allegation of facts and the facts themselves, in the sense of the Code, which requires that the facts shall be sworn to. An allegation may be false or it may be true, as the fact exists or not' — but, strictly speaking, a fact cannot be false — it is only the allegation of its existence which maybe so. The affidavit was in our opinion sufficient.

II. The proceeding was in the district court, which had rendered the original judgmeht, and upon which the execution had "been issued. The parish judge was applied to in the absence of the judge of the district court, to grant the order for the injunction, but the petition was properly addressed to the court from which tho plaintiff sought relief, and not to the officer appointed by law to act in the absence of the judge, whether the'clerk of the court or the parish judge.

III. The writ which issued was made returnable in the district court and was issued by its clerk. It was not necessary, in our opinion, that the judge in giving his fiat should direct that the writ should be returnable in a particular court. It is the duty of the clerk to issue the writ, and it appears that he acted correctly.

IY. It is enough, we think, that the bond be of sufficient amount, with solvent sureties, and such as that the party in whose favor it is made may maintain an action upon it, if it should appear that the injunction was wrongfully sued out. The date of the bond may well precede the filing of the petition, and yet the bond be valid.

Y. We may well presume that the parish judge knew of the absence of the district judge when he granted the order. His absence in point of fact is not denied, and the presumption is that the parish judge in granting the order did not exceed his powers.

We conclude that the court erred in sustaining the exceptions and dismissing the proceedings.

It is therefore decreed that the judgment of the District Court be reversed, that the injunction be reinstated, and the case remanded for further proceedings according to law, and that the appellee pay the costs of this appeal.