Hereford v. Babin , 14 La. Ann. 333 ( 1859 )

Buchanan, J.

In June, 1854, a judgment was rendered by the District Court of East Baton Rouge, in the suit of Leverich, Curator of Walsh, v. Amos Adams and Harriet Hereford, upon certain contacts and money transactions between those parties, in relation to a sugar plantation and its cultivation; by which judgment it was decreed that the plaintiff recover of the defendant, Adams, severally, a certain sum of money, with interest — of the defendant, Hereford, severally, another sum of money, namely, $3846 66, with interest — of the defendants, Adams and Hereford, jointly, another sum, being ten thousand, three hundred and seventy dollars, with legal interest from the 8th December, 1851, until paid; and that the rights of Amos Adams and of Mrs. Harriet Herefwd, if any they have, to recover of the estate of Edward J. Walsh, any sums due to them for the use and hire of their slaves, horses, mules, &c., &c., in making or assisting to make and take off the crops of sugar, &c., made on the Highland plantation be reserved to them, to be enforced in due course of law. i

In May, 1855, the Supreme Court, on appeal, affirmed the said judgment of the District Court, with the exception of that portion which coudemned Mrs. Hereford to pay, severally, $3846 66, with interest.

Execution issued from the District Court against Mrs. Herefwd, upon the judgment thus affirmed, for $5185, with interest, being the one-half of the sum in which there had been judgment jointly against herself and Amos Adams.

The present suit was commenced by injunction of said execution. Mrs. Hereford claims in her petition to be creditor of the succession of Walsh, plaintiff in execution, for the matters reserved in the judgment of the District and Supreme Courts; that she have judgment against Walsh’s estate for such indebtedness; and that the amount of such judgment be imputed to the payment of the judgment rendered against her, and upon which the execution had issued.

The defendant in injunction, plaintiff in execution, pleads :

1st. “ That the District Court of East Baton Rouge is without jurisdiction of a claim against the succession of Walsh, which is opened and in course of administration, in the Second District Court of New Orleans.

2d. That the writ of fieri facias, which is enjoined, issued upon a final judgment of the Supreme Court, duly enregistered and made executory in this court; that said judgment of the Supreme Court is absolute and unconditional, as to the matters it professes to decide, and its execution cannot be enjoined by the plaintiff while litigating other matters in controversy, which the judgment has reserved.

3d. That the allegations of the plaintiff’s petition, on which an injunction was prayed, constitute a plea of compensation, which, as the petition shows, is an unliquidated demand, and cannot be set up by way of injunction against a judgment.

And prays, that the suit be dismissed, and the injunction dissolved, and for judgment against the principal and surety in the injunction bond for twenty per cent, damages under the statute, and for five hundred dollars special damages for counsel fees.

It appears from the petition and from the documents annexed, that the succession of Edward G. Walsh is opened and in course of administration, in the parish of Orleans, as alleged in the exception. This fact was also admitted on the trial of the exceptions.

The declinatory exception was well founded. C. P. 164, \ 2; 924, ji 13 ; 986.

Upon the second plea of defendants :

The right of a party to enjoin the execution of a judgment, absolute and unconditional as to the matters which it professed to decide, during the litigation of other matters in controversy, which the judgment has reserved, was expressly denied in Henderson v. Wilcox, 2d An. 502 ; which was a suit commenced by injunction of the judgment in Wilcox v. Henderson, 7 Rob. 328, under circumstances precisely similar to those of the present case.

Upon the third plea :

The claim set up in plaintiff’s petition is evidently in the nature of compensation or offset of the judgment of defendant; for the prayer of the petition is, that they be imputed to the payment of that judgment. Now, it is an elementary principle, that compensation only takes place between the debts which are equally liquidated and demandable. C. 0. 2205. As a consequence of this principle, it is the settled jurisprudence of this court, that an unliquidated claim cannot be pleaded, by way of compensation and injunction, against a judgment. 10th An. 721 and 734.

The appellee prays that the judgment of the District Court be amended, by allowing him five hundred dollars as special damages for counsel fees, in addition to the allowance of damages by the judgment oí the District Court. We think the circumstances of the case entitle him to the relief sought, to the extent of two hundred and fifty dollars.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended ; that the injunction herein issued be dissolved, and that the defendant, William E. Leverich, curator of the estate of Edward J. Walsh, recover of Harriet Hereford and William F. Tunnard, in solido, six hundred dollars as damages, and interest, at the rate of eight per cent., on the judgment enjoined, from the date of the injunction (2Gth of June, 1857) until paid, together with costs in both courts.

Voorhies, J., absent.