Perry v. Kearney , 14 La. Ann. 400 ( 1859 )

Land, J.

The plaintiff enjoined the execution of a judgment against him, and in favor of the defendant for the sum of eight hundred and fifty-one dollars and thirty-four cents, on the ground of payment and satisfaction, with an order on the New Orleans Oil Manufactoring Company. To prove the grounds alleged in the petition for an injunction, the plaintiff propounded interrogatories to the defendant, who answered as follows:

“ I received on said judgment $525 60 in merchandise after the judgment was rendered, and have always been ready and willing to credit the defendant with said amount. On the day the execution issued in the suit of Alfred Kearney v. E. Wood Perry, my attorney instructed the Sheriff in writing to credit Mr. Perry on said fi. fa., with the aforesaid sum of $525 60. I have received nothing more from E. Wood Perry since the rendition of the judgment. But before the rendition of the judgment, Mr. E. Wood Perry gave me on account of the notes sued upon by me, Ms note for $100, which was paid. I have always been ready and willing to credit Mm with the amount, though legally, he could not claim it after the rendition of the judgment.”

The defendant, in Ms answer to the petition, admitted the facts above stated to be true.

There was judgment, dissolving the injunction, and condemning the plaintiff, and Ms surety on the injunction bond, to pay twenty per cent, damages on the sum of $225, and costs of suit.

This judgment is erroneous in not perpetuating the injunction, for the amounts admitted by the defendant to have been paid, and in condemning the plaintiff to pay the costs of suit.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and that the injunction issued in this case be perpetuated for the sum of six hundred and twenty-five dollars and sixty cents of the judgment in favor of defendant against the plaintiff, and dissolved for the balance of said judgment, to-wit: the sum of two hundred and twenty-five dollars and seventy-four cents, and that the plaintiff, and Henry Perry, his security on the injunction bond, be condemned in solido to pay to defendant twenty per cent, damages on the said sum of two hundred and twenty-five dollars and seventy-four cents, the balance due on said judgment. It is further ordered and decreed, that the defendant pay the costs of the lower court, and also the costs of this appeal.