12 La. Ann. 587 | La. | 1857
Some of the judgment creditors of one Broolcs, caused a fi. fa. to issue against his property; plaintiff sued out an Injunction, in which he represents that they had seized 1280 acres of land belonging to him, and within the Grappe reservation, and would proceed to sell the same, unless enjoined.
The Sheriff and said judgment creditors in their answer, expressly disclaim any seizure of the property claimed by plaintiff, and any advertisement of said land under the seizure made at the suit of Daniels et als. v. J. Brooks, and pray that the injunction be dismissed.
Plaintiff has failed to establish, as alleged in his petition, that his land was ever seized.
On the trial in the lower court, plaintiff took a bill of exceptions to the ruling of the Judge a quo, who refused to permit him to prove, by Boland Jones, that Daniels, one of the defendants, “ claimed the land in controversy as the property of Broolcs, and subject to the satisfaction of the judgment in the suit of Daniels et ais. v. Broolcs, and also that said witness had advised said Daniels, as his counsel, that said land was subject to be seized and sold under the fi. fa. issued in said judgment.
We think the Judge a quo did not err in deciding that the testimony offered was irrelevant and immaterial under the pleadings.
Plaintiff avers in his petition, that his land has been already seized and advertised for sale under the said writ of fi. fa. ; and that the said Daniels et als. will proceed to sell under said writ, the said 1280 acres of land, as the property of the judgment debtor Broolcs, unless enjoined from so doing, and he prays for a writ of injunction enjoining them from proceeding to sell said land under said fi. fa., and for judgment declaring said seizure illegal and void, &c.
We are of opinion, that under the prayer of the petition, it was necessary to establish a seizure, and not the intention to seize.
The judgment of the lower court dissolved the injunction, dismissed the suit at plaintiffs’ costs, and decreed that the defendant recover one hundred dollars for special damages proved, for counsel fees of defendant for defending the suit.
This judgment is erroneous in condemning plaintiff to pay one hundred dollars counsel fees as special damages.
The Acts of March 1, 1831 and March 29, 1833, allow special damages on the dissolution of an injunction, only when the execution of a judgment is enjoined, and not when, as in this case, the sale of specific property, which has not been seized, is exhibited by injunction.
We interpret this Act to mean, that a fee of ten dollars is all that the curator or attorney ad hoe is entitled to, rvithout respect to the number of defendants, unless he has made application and proof to the court, to have the amount increased in proportion to the services rendered.
The first section authorizes the appointment of curators ad hoe, and attorneys ad hoc, by the Clerks of the District Courts out of the parish of Orleans, when the Judge of the District is absent from the parish, to represent absent defendants in any case before the court; and section 2 provides, that attorneys thus appointed shall be entitled to the sum of ten dollars, as a fee, to he taxed as costs, which, upon application and proof to the court,, may he increased in proportion to the services rendered.
It is, therefore, ordered, adjudged and decreed, that the part of the judgment which dissolves the injunction at plaintiff’s costs be affirmed; that the part which condemns plaintiff to pay defendants one hundred dollars for special damages for council fees, be avoided and reversed. It is further ordored, adjudged and decreed, that the judgment be so amended, as to allow Roland Jones ten dollars, to he taxed as part of the costs of the lower court; and that plaintiff pay the costs of the lower court, and defendants and appellees pay those of appeal.
