Witkowski v. Selby , 15 La. Ann. 328 ( 1860 )

Land, J.

The plaintiffs obtained an order of injunction, without giving bond and security, under Articles 739 and 740 of the Code of Practice, to arrest the execution of an order of seizure and sale obtained by the defendant on certain mortgage notes which had been executed by the plaintiffs in his favor.

Tho defendant filed a motion to dissolve the injunction, on certain specified grounds, and prayed for damages against the plaintiffs, under the statute, for illegally suing’ out the writ.

The injunction was dissolved; bat- the District Judge refused to allow damages to the defendant, and he has appealed, and assigns for error the refusal of the District Judge to award him damages, under the statute, as prayed for in his motion to dissolve the injunction.

The order of injunction was granted by the District Clerk, and the only question for our decision is, whether District Clerks have power to grant orders of injunction without requiring bond aud security.

Since the Code of Practice went into effect, power has been vested in the Clerks of District Courts to grant orders of injunction in the absence of the Judge from the parish, or when he is interested in the cause; but they are, in all cases, required to take bond and security from the party at whose suit the order of injunction is granted. Acts of 1855, p. 50.

The District Clerk, therefore, acted illegally in granting tho order of injunction without requiring bond and security, and his omission of official duty cannot inure to the benefit of tho plaintiffs, who wrongfully obtained the order and sued out the writ of injunction.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be reversed, so far as it rejects tho defendant’s claim for damages under the statute; and it is now ordered, adjudged and decreed, that the defendant recover of tho plaintiffs in solido the sum of five hundred dollars damages, the same being five per cent, on the amount of the judgment enjoined; and that the judgment of the lower court, thus amended, be affirmed, with costs in both courts.