Desblieux v. Darbonneaux , 2 Mart. (N.S.) 215 ( 1824 )

Martin, J.

delivered the opinion of the court. The plaintiff states he sold a tract of land to Mrs Savoie, who, before she paid the purchase money, sold it to the defendant, who in the deed of sale, bound himself to pay the plaintiff the stun of $2500, in two instalments, one of which has since become payable. The petition concludes with a prayer for judgment and a sale of the premises.

The answer admits the defendant's purchase, but alleges there was a deficiency of more than one twentieth, in the quantity of land sold; wherefore he has a right to the rescission of the sale, or a diminution of the price, and be accordingly brought a suit, against his vendor, which is still pending and undetermined.

When the cause was called for trial, the defendant, on an affidavit of the truth of the facts alleged in the answer, and of his inability to go safely to trial till the determination of his suit against his vendor, prayed for a continuance, which being denied, he took a bill of exceptions.

There was judgment for the plaintiff, and the defendant appealed.

In the answer to the petition of appeal, the plaintiff alleges error to his prejudice, and prays that the judgment be so amended, as to decree a sale of the premises, that the plaintiff may paid privilege.

The defendant and appellant complains only the denial the continuance.

does not appear to us, that the continuance was improperly denied. If the deficiency of measure affect the plaintiff’s right, the defendant might have made him a party to the suit he brought against Mad. Savoie-or he might have shewn this, at the trial of the present cause, and if necessary, have made Mad. Savoie a party to it.

The plaintiff could not be concluded by any judgment the present defendant might obtain in the suit he has instituted; and if he had obtained one, it could not destroy a right of the plaintiff, who was not a party to the suit, and who consequently, would oppose its admission as evidence in the present suit.

It would have been idle to grant a continuance to the defendant, to give him time to obtain a judgment, which could not be used in the present suit.

The district court erred in denying to the plaintiff, a judgment decreeing that the plaintiff should be paid by the sale of the premises, as a privileged mortgage.

Damages are prayed as in a frivolous appeal-whether the present be one of that kind or not, as the plaintiff derives an advantage by it, to having the judgment amended, he cannot say that it Works any injury to him-and where there is no injury, damages cannot be awarded.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and proceeding to give such a judgment as in the opinion of this court, ought to have been pronounced by the judge a quo, It is ordered, adjudged and decreed, that the plaintiff recover the sum of fifteen hundred dollars, with interest from the first of April, 1823, and costs, as a privileged mortgagee of the premises, and costs in both courts.

Afl~UED AND DETERMINE~ zic TUE ~VPREME COURT OTTUE STATE OF LOUIS1ANA~ EASTERN DISTRICT, MARCH TERM, 1824.