Wadsworth v. Harris

1 Rob. 96 | La. | 1841

Martin, J.

The defendant moved for the dissolution of the injunction, which the plaintiff had obtained, on the following grounds: first, the petition is addressed to the parish judge, while it ought to have been to the district court; and secondly, no citation was issued as the law requires. The injunction was dissolved, and the defendant had judgment against the plaintiff and his sureties, in solido, for ten per cent on the amount of the execution enjoined, with fifty dollars as special damages for his attorney’s fee, and costs of suit. The plaintiff appealed. It appears to us that the first error assigned is fatal. In the case of Watson et al. v. Pierce, 6 Martin, N.S., 417, we held, that where' a petition was addressed by mistake to a tribunal different from that in which it was filed, the error is fatal. No judgment by default can be taken, nor can permission be given to amend -the petition by changing the address. The Code of Practice, art. 171, requires the petition to be addressed to a competent judge. The execution in the present case appears to have been issued from the district court, on a judgment obtained in a sister state, for a sum exceeding the jurisdiction of our parish courts. It is urged that ho district judge resides in the parish of Caddo, nor was any such officer in that parish, when, the petition was presented to the parish judge, who in such a case is authorized by a late law to issue a writ of injunction, returnable to'the district court. Acts of 1835, p. 227. It is probable, that the present was a case in which a writ of injunction might have been issued by the parish judge. Neither the non-residence nor absence of the district judge from the parish, is, however, alleged,in the petition. The petition ought, in all cases like the present, to be addressed to the district court, whether a district judge reside or be accidentally in the parish or not -, and on a petition so addressed, the parish judge is competent to order the writ of injunction under the act of 1835. See also our decision in the case of Stanbrough v. Scott, Sheriff, &c., ante, 43, at the present term. We think the district court erred in allowing to the defendant fifty dollars for his attorney’s fee.

Gilbert, for the plaintiff and appellant. „ Sherburne, for the defendants.

It is therefore ordered that the judgment of the district court be affirmed with costs, except so far as it relates to the allowance of fifty dollars for the attorney’s fee ; and that in this particular it be reversed, the costs of the appeal to be borne by the defendant and appellee.