21 La. Ann. 468 | La. | 1869
On the twenty-first day of April, 1866, Warren & Crawford obtained an order of seizure and sale against the property of D. H. Williams, an absentee, and they were proceeding to sell said property when the plaintiff in this suit obtained a writ of injunction to prevent the sale.
The defendant moved to dissolve the injunction, with damages, on several grounds. We will notice only those insisted on in this court, iu their order.
First — That the injunction was granted by the clerk of the District Court, who was prohibited by the’ Constitution of 1868 from exercising judicial functions. The writ was issued on the sixth day of June, 1868, anterior to the organization of the government under the constitution of 1868. And by the one hundred and fiftieth article of said constitution, the laws in relation to the duties of officers remained in force until the organization of the government under it, although contrary to the provisions of the constitution. '
Second — That the agent was not authorized to make the affidavit.
The affidavit was made by D. C. Morgan, one of the attorneys-at-law, who signed the petition for the injunction, and the agent of the plaintiff. The affidavit states these facts. The power of attorney declares that D. II. Williams, of the county of Navarro, State of Texas, has made constituted and appointed D. C. Morgan' his agent and attorney in fact in the State of Louisiana to represent him fully in allmatters wherein he is interested, and he specially empowers him to do all the acts of ownership specified in article 2966 of the Civil Codo.
The fourth and fifth grounds are that the allegations of tne petition for injunction are not true. They should have been referred to the merits.
Sixth — The sixth objection is that the plaintiff does not allege that he will be injured. This is not sacramental.
He avers that the note, which is the basis of the order of seizure and sale is prescribed. It is manifest therefore that he will be injured if his property be sold to pay a debt which has been extinguished.
The motion to dissolve the injunction should have been overruled.
It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, that the motion to dissolve the injunction be refused, and that this case be remanded to be proceeded with according to law. It is further ordered that the appellees pay the costs of appeal.
