Spencer v. Banister , 12 La. Ann. 766 ( 1857 )

Buciianan, J.

The plaintiff having hired a house of the defendant, Charrlotte Banister, at the rent of seventy-five dollars per month, payable monthly, became indebted in two months rent, which he neglected to pay; and defendant sued out a writ of provisional seizure in the Pourth District Court of New Orleans. Plaintiff, by a separate action in the same court, enjoined the execution of the writ of provisional seizure, on the ground that the Sheriff had seized and taken into possession under the same, the instruments, tools and furniture necessary for the carrying on of his profession, also of his bed and bedding, &c., all which plaintiff alleged were exempt by law from seizure; wherefore he prayed that the injunction be perpetuated, and for damages in the sum of five hundred dollars against said Charlotte Banister, for the illegal seizure. After hearing evidence upon this petition, the Pourth District Court rendered, on the 23d of Ajiril, 1855, the following judgment:

“It is adjudged and decreed, .that the injunction be maintained, so far as tho same applies to the articles above mentioned, and that the said injunction he dissolved and dismissed as regards any other articles seized, the plaintiff paying costs of suit.”

It will be observed, that this judgment, although it partially perpetuates the injunction, awards no damages as claimed. On the 15th of May, 1855, being eighteen days after the signature of the judgment of the Pourth District Court just recited, the plaintiff brought the present action in the Sixth District Court of New Orleans, claiming three thousand dollars damages for an illegal seizure of his bed and bedding, and the tools and implements by which plaintiff gains a livelihood, “ which by law are exempt from seizure and sale.”

The seizure mentioned in this petition, is tho same which was tho subject o" the injunction in the Pourth District Court. The plea of res judicata put in by tho defendant, Chm'lotte Banister, to the present action, should have been maintained by the court below. The silence of the judgment of the Pourth District Court upon the plaintiff’s claim for damages for the same seizure, was equivalent to a rejection of that claim. Delahaye v. Pellerin, 2 Mart. 142; Robertson v. Penn, 2 La. 61; Williams v. Painpade, decided in December, 1855, and not reported. See Opinion Book 25, p. 463.

The difference in the amount of damages claimed in the present action, from that previously claimed, is of no consequence. The cáuse of action is substantially the same; an illegal seizure of effects exempted by law from' seizure.

As to the defendant, Thomas Banister, ho seems to have merely appeared in the suit for rent, to assist and authorize his wife, for whose behoof alone judgment was prayed, and who made the affidavit for the provisional seizure.

Judgment reversed, and judgment for defendants, with costs in both courts.