33 La. Ann. 410 | La. | 1881
Lead Opinion
On the Motion to Dismiss.
The opinion of the Court was delivered by
Appellee moves to dismiss this appeal, as to the appellant, J. M. Oientat, on the ground that he has acquiesced in the judgment appealed from and applied for his suspensive appeal after legal delays had elapsed. He also filed a supplemental motion to dismiss on the following grounds: 1st. That the certificate of the clerk of the lower court is incorrect and untrue, in that the testimony of certain witnesses was
As to the first ground, that of acquiescence, the record shows that the payment of the amount for which a fieri facias had been issued and his property seized thereunder and about to be sold, by the appellant Cientat, was not such voluntary execution of the judgment as would constitute acquiescence therein. He paid the amount under the advice of counsel, on the very eve of the sale of his property by the sheriff, with a protest, and with the declaration, acknowledged in the sheriff’s receipt, ■that it “ was made under compulsion of an impending sale” of his property, to satisfy theyi. fa. issued under the judgment herein appealed, which sale was about to take place. Said receipt also contains the statement by the sheriff, to whom the payment was made, that, Oientat “ protests against the payment, and makes it only to avoid the sale and sacrifice of the property seized and advertised as aforesaid,” and specially " insists that the execution under which said payment is made is wrongful and illegal by reason of his having taken a suspensive appeal from the judgment in this case,which is not yet determined in the Supreme Court,” and that “ he insists upon his right of appeal aforesaid, and in no sense acquiesces in or voluntarily executes said judgment.” The case of Johnson vs. Clark & Meader, 29 An. 762, in which the facts are quite similar to those in this case, and where a motion to dismiss the appeal was made, the Court passed on the very question raised herein, and the reasons there given seem to us to be decisive, and the doctrine then held must be applied to thisgcase. The Court said: “ The defendants did not voluntarily execute the judgment of the lower court. They disregarded the sheriff’s first notice, requiring the payment of the fieri fa
As to Cientat, he cannot be held responsible for the deficiencies of the transcript, when the minutes of the lower court failed to show that certain testimony was taken and certain documents filed by the plaintiff. He took the case as the record of the court showed it, and the failure of the plaintiff to file the documents and of the court and the parties to the suit to have the testimony taken down in writing, should not be visited upon him or imputed to him as a fault, and that, especially, when the case was tried in his absence, and virtually ex parte as to him. The motion to dismiss cannot, therefore, be sustained as to Cientat.
As to Verges : The failure to perfect his suspensive appeal and its abandonment by not giving bond within the delay fixed by law, did not prevent him from availing himself of the right to a devolutive appeal, which he has taken. In the case above cited, 29 An. 762, (Johnson vs. Clark & Meader), it was held : “ The appellee has a right to demand the dismissal of the appeal if the appellant has neglected to give a sufficient bond, or omitted any other legal formality; but a judgment of dismissal pronounced on such demand does not preclude the appellant from having the judgment of the lower court reviewed, if he claims his second
We find no evidence in the record, but the judgment itsplf states that “ considering the law and evidence are against plaintiff and in favor .of defendants, etc.,” and in such case we will presume that the j udgment was properly rendered, and upon evidence properly before the Court.
In this ease there was a reconventional demand, and, therefore, the judgment was not to be confined to one of nonsiiit. (Hen. Dig., Judgment, viii, No. 18).
The case of Moch vs. Garthwaite, 11 An. 287, is decisive of this point, where the Court held: “Where a plaintiff is seeking to recover from a defendant a sum of money, or to enforce from him the recognition of some right, or the performance of some obligation, a trial had in his absence will entitle the defendant merely to a judgment of nonsuit as against the plaintiff; but this rule is strictly applicable to cases where the position of the party sued is purely defensive, and cannot be extended to cases where the defendant is himself obstructed in the recognition or enforcement of his own rights or counter-claims against the plaintiff. Thus a plaintiff cannot by discontinuing or submitting to a nonsuit, prevent a defendant from trying his claim in reconvention.” And, again: “ We think that where in an injunction suit the issues have been once properly presented to the court upon pleadings involving issues upon the merits, that the judgment dissolving the injunction, unless appealed from, will be conclusive between the same parties, where the same grounds are again set up to enjoin a second seizure for the same'debt or of the same property.” This doctrine is fortified by the following eases: 5 An. 298; 21 An. 814.
It is, therefore, ordered that the motion to dismiss the appeal of Jean M. Cientat be denied at costs of appellee, and the appeal of Pierre Verges be dismissed at his (Verges’) costs.
Rehearing refused.
Opinion on the Merits
The opinion of the Court was delivered by
J. M. Oientat, surety on the injunction bond furnished in this case, complains that he was mulcted in damages by the judgment dissolving the injunction; that he was not sued, and that there was no demand from the defendant in injunction that he be condemned in damages.
The injunction obtained in this case was not sought to arrest the execution of a money judgment. Its object was to prevent the putting in possession of an adjudicatee of real property claimed by the plaintiff, a third person, as owner.
Article 304 of the Code of Practice does not apply to cases of this description. 32 An. 718, 974.
In suits of this character, the injunction must first be dissolved, and the defendant in injunction must be left to his recourse on the bond for damages. If it were true, that he could in such a case claim at the same time a dissolution and damages, he could do so only by a proceeding in the nature of a direct suit, in which the surety should be cited and afforded an opportunity to defend himself. Under no circumstances, however, could he recover damages against the surety without asking for the same. A prayer for general relief would not warrant a judgment against the surety.
It is, therefore, ordered, adjudged and decreed that the judgment appealed from, as far as it affects J. M. Oientat, be reversed, and that this case as concerns him be remanded to the lower court, there to be reinstated in the condition in which it stood before it was fixed for trial; appellees to pay costs in both courts.