Denson v. Stewart , 14 La. Ann. 703 ( 1859 )

Land, J.

The plaintiff sues the defendant, Stewart, for the sum of four hundred and twenty dollars, with interest, for the alleged balance of the price of a slave sold by him, as agent for plaintiff; and enjoins John Walters, a merchant of Shreveport, from paying said sum of money over to said Stewart, on the allegations of ownership in himself, deposit by defendant with Walters, the insolvency of Stewart, and of his fear and belief that if the money is paid to defendant, that he will convert the same to his own use, and thereby defraud him, plaintiff, of his just rights.

The defendant filed a motion to dissolve the injunction on the following grounds :

First. Because the bond is not signed by the plaintiff or any duly authorized agent or attorney at law.

Secondly. That the affidavit is not made by the plaintiff or any duly authorized agent or attorney-at-law.

Thirdly. Because the plaintiff does not make any averments or allegations, that entitle him to the writ of injunction, and if he does make such allegations, then are untrue.

Fourthly. That a final judgment has been rendered by your honorable court, dissolving plaintiffs injunction upon the same issues presented by the present pleadings; which last ground defendant pleads as a peremptory exception.

Defendants further aver, they have sustained seventy-five dollars general damages by the loss of the use of the money enjoined, and the trouble and vexation Of this suit, and fifty dollars special damages for counsel fees. Whereupon they pray the injunction may be dissolved at plaintiff’s costs, and that they have judgment against plaintiff and his security in solido, for the said sums of seventy-five and fifty dollars, general and special damages, &c.

The District Judge ordered this motion to stand as a part of the defendant’s answer, and from this order formally signed by the Judge, the defendant, Stewart, has appealed.

The plaintiff’s counsel has filed a motion to dismiss the appeal, on the grounds that the judgment appealed from is not a final one ; and, secondly, because it will not work an irreparable injury to defendant.

The judgment is interlocutory, and could have caused no injury to defendants, and was, besides very proper in itself, because the third ground taken in the motion to dissolve, puts at issue the truth of all the allegations in the petition, as well as the law arising upon them, and was in itself the general issue or denial, for under our system of pleading, the general denial puts at issue both the law and facts of the plaintiff’s case.

It is, therefore, ordered and decreed, that the motion be sustained, and the appeal be dismissed at costs of appellant.