Nichols v. Nichols , 13 La. 291 ( 1839 )

Rost, J.,

delivered the opinion of the court.

The plaintiff, N. Nichols, enjoined the execution of a judgment rendered against him in favor of the defendant, on the ground that he had a claim to compensate against it, and that he had appealed, and the appeal was still pending. The defendant took a rule upon the plaintiff, to show cause why the injunction should not be dissolved, and the plaintiff adjudged to pay damages on the following grounds :

I. That the matters set up in the petition had been pleaded in the original suit, and could no longer avail the plaintiff.

II. That the appeal taken in the former suit had not been prosecuted, as shown by the certificate of the clerk of the Supreme Court, anterior in date to the execution enjoined by the plaintiff.

The rule was tried, and the grounds assumed by the defendant being fully sustained by the evidence adduced, the judge dissolved the injunction and condemned the plaintiff and his surety to pay in solido, to the defendant, twenty per cent, damages. From this judgment they have appealed.

We see nothing upon which their hope of success could be founded, and we are satisfied that the appeal was taken for the purposes of vexation and delay, and if it is considered that the plaintiff is the son of the defendant, little will be found in the circumstances of this case to recommend him to the indulgence of the court. The defendant is entitled to the damages he has asked.

It is, therefore, ordered, adjudged and decreed, that the judgment of the City Court be affirmed with costs, and ten per cent, damages, for a frivolous appeal.