Barrow v. Robichaux , 15 La. Ann. 70 ( 1860 )

Land, J.

This is the third injunction suit instituted by the plaintiff to arrest the execution of the same writ of fieri facias in the Sheriff’s hands, issued on a judgment against him, for the sum of five thousand dollars, with five per cent, interest per annum, in favor of John McDonald.

The first injunction suit is reported in 14th Annual Reports, p. 207. The second injunction suit was instituted in the parish of Terrebonne, and the writ of injunction granted by the Glerk, and directed to the Sheriff of the parish of Lafourche. The third injunction suit was commenced in the parish of Lafourche, and the writ of injunction was granted by the Clerk, and directed to the Sheriff thereof. In the third and last mentioned suit, the plaintiff alleges “ that the proceedings of the said Sheriff are illegal, and the said sale should be arrested for the reasons set out in the petition addressed to the Fifth Judicial District Court in and for the parish of Terrebonne, éc." One of the grounds alleged for injunction in the petition filed in the District Court of the parish of Terrebonne, was, “ that on the 28th of June, 1858, petitioner instituted suit in the District of Lafourche, No. 2273, against John McDonald, and recovered, on the 7th day of January, 1859, a judgment against the said McDonald for the costs of suit; that the said costs amount to sixty-eight dollars and fifty cents, and which, as plaintiff, petitioner will be compelled to pay, and which he is entitled to claim and recover against the said defendant.”

On the trial of the injunction suit instituted in the parish of Lafourche, the plaintiff, by his counsel, moved the court for leave to dismiss the suit, “ in so far as the same may be considered as having been based upon any of the matters mentioned and contained in the petition referred to in the petition herein, and filed in the District Court for the parish of Terrebonne, a copy of which is contained in this record.” The motion was refused, and to the ruling of the court the plaintiff took a bill of exception.

The defendant lias appealed, and the plaintiff as appellee, has joined in the appeal, and prayed for an amendment of the judgment, so as to perpetuate the injunction, and allow no damages to the defendant and appellant. The appellee contends, that the District Judge erred in refusing to sustain his motion to dismiss his suit, so far as it was based on the allegations of his petition filed in the second injunction suit in the parish of Terrebonne, and that for this error, the judgment should be reversed.

The defendant, in his answer to the petition, set up a reconventional demand in damages against the plaintiff, for illegally suing out the writ of injunction against the execution of his judgment. This reconventional demand prevented the plaintiff from discontinuing his suit in opposition to the consent of the defendant. McDonough v. Copeland, 9 La. 310. And if the plaintiff had discontinued his suit, without opposition on the part of the defendant, the latter had the right to prosecute against him his claim in reconvention, notwithstanding the discontinuance. Coxe v. Downs, 9 R. 133. The District Judge, therefore, did not err in overruling the motion to dismiss, and in trying the case, and rendering a final judgment on all the alleged grounds for injunction contained in the plaintiff’s petition.

As the allegations in the petition filed in the second injunction suit instituted in the parish of Terrebonne, were also made the grounds in the petition in this case, for obtaining the writ of injunction herein issued, it may not be immaterial to say, that the judgment rendered in this case has the force and effect of the thing adjudged, in the second injunction suit instituted in the parish of Terrebonne, as well as in this, the third injunction suit instituted in the parish of Lafourche.

The District Judge dissolved the injunction, and condemned the plaintiff and his surety on the injunction bond, to pay eight per cent, interest, and twenty per cent, damages, on the amount of the judgment enjoined, less a credit of sixty-eight dollars and fifty cents. The full penalty of the statute was very properly imposed on the plaintiff and his surety in this case, for enjoining the execution of the whole judgment, when he was entitled to enjoin, if at all, for a very insignificant sum. 14 An. 207.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be affirmed, with costs.