Voinchè v. Voinchè ( 1880 )

De Blanc, J.

The plaintiff filed an amended petition, in which he contends that the monthly allowance of fifty dollars was consented to through mere affection for his wife, and constitutes a non-heritable obligation which cannot be enforced by her heirs.

The defendant’s counsel excepted on the grounds : —

1. That it changed the nature of the pleading. Which was properly overruled.

The amendment did not change the substance of the action. Adle v. Metoyer, 1 Ann. 250.

In answer to plaintiff’s supplemental petition, defendant denies that the monthly allowance to Emelie Pochcile was -gratutious, or that it was granted through affection for her. They were divorced, compromised as to the property owned in common by them, and the result of this compromise was the basis of the judgment which she obtained against him on the 1st of March, 1866.

The evidence as to the fact that the share of said heirs was to be applied to the payment of what they owe to plaintiff is in the record.

It is true that a debt not liquidated cannot be compensated against an execution. That is the general rule; but there are exceptional cases presenting exceptional features, in which the application of the general rule would most uselessly retard and impede the course of justice. In these cases, much is left to the proper discretion of the judge. If, in this suit, the debts of the succession are paid, if the heirs of Emelie Pochelle are the proprietors of whatever belongs to her succession, they own the judgment which is being executed against their father, and it would be unjust to allow those of said heirs who are his debtors and who have agreed that he should take their share of said judgment, to the extent of their indebtness to him, to sacrifice his property under the execution issued from said judgment.

The pretension of plaintiff that the monthly alllowance of fifty dollars, recognized in the judgment obtained by his wife against him, is an obligation which she alone could have enforced, is not tenable.

Whatever was due of that judgment at her death, passed to her legal representatives.

The plaintiff admits that he still owes a balance of $255.97, and that admission, which is not contradicted by his own calculation, precluded the possibility of perpetually enjoining the whole of the execution. The law, on this point, is imperative. “ Nq judgment or execution shall be enjoined, on an allegation of compensation or subsequent payment, except for the amount pleaded in compensation or payment, etc.; and, for any surplus that may exist, the judgment shall be executed, in all respects, as if no such injunction had been granted. Revised Statutes, sect. 1751.

Judgment reversed and case remanded to ascertain all the credits, and of permitting plaintiff in injunction to prove hoto much were the shares of the two heirs, and hoto much they had received from their father, and to compensate the claims pro tanto.