22 La. Ann. 463 | La. | 1870
Lead Opinion
The defendants have moved to dismiss this: appeal, on the ground that the sureties on the iniunetion bond have not appealed, and are not parties to the appeal.
The motion for an appeal was made in open court and granted, and the appeal bond is in favor of the clerk. We have held that under such a state of facts the parties to tho suit, who are not appellants are appellees, and that the appeal will not be dismissed. The motion is therefore refused.
It is now well settled that an injunction will not bo dissolved, if it appears from, the record that there exists good cause for an injunction. This record contains such evidence.
The plaintiff, a member of a planting and commercial partnership, had dealings with tho defendants, tho factors and agents of said firm, during the year 1867. The account current, furnished by the defendants, shows that the plaintiffs are charged with tho amounts of these, two notes, which form the basis of the order of seizure and sale, and with drafts accepted as well as drafts paid for plaintiffs, with supplies, commissions, interest, etc., amounting in the aggregate to $27,040 15; and that they are credited with tho proceeds of the two notes, less two and a half per cent commission, two and a half brokerage, and eigliby.seven discount, with the proceeds of cotton, cash remitted, etc., amounting in tho aggregate to $18,834 28; leaving a balance against ■the plaintiffs of $8205 87.
For this, balance an order of seizure and sale was issued, without any proof of its correctness.
The notes were made, in favor of tho defendants to enable them to raise thp money necessary for them to do the business of their principals. When these notes were taken up by the factors, they had accomplished the object for which they were made, and they were mere vouchers in the hands of tho factors, to prove items of their account against their principals. 2 An. 635, Succession of G-uellemain; 2 An. 779, Toledano v. Gardiner; 9 An. 116, White & Co. v. Rucker. It. would be monstrous to permit the factors to resort to the executory process, under such circumstances, even if a mortgage exists to secure the balance, about which we express no opinion. The factors and agents should be required to prove, contradictorily with their principals, the correctness of their accounts.
It is, therefore, ordered and adjudged that the judgment of the district court, against the plaintiff, be avoided and reversed, and that the injunction be perpetuated. It is further ordered that the defendants pay costs of both courts.
Dissenting Opinion
dissenting. The pleadings of the plaintiff himself, and the testimony in the record, have satisfied my mind that at the time the defendants took out their executory process, they were the holders in good faith, for value, of the notes in question, secured by mortgage importing a confession of judgment, and were entitled to the executory process. While, therefore, I do not differ with the court upon the abstract doctrines of law stated in the opinion, I can not think that the facts of the case support the decree.
