Russell v. Beyl , 5 Teiss. 18 ( 1907 )

DUFOUR, J.

This is a suit brought by the plaintiff against Beyl, a policeman; Owens, the s.urety on his official bond, and the Board of Police Commissioners of the City of New Orleans, to recover damages for the alleged illegal arrest of the plaintiff by said Beyl.

An exception of no cause of action presented by the Board was sustained; a similar exception filed by Owens, the surety, was referred to the merits, and finally there was judgment against Beyl and Owens in solido.

Owens alone has appealed, and the plaintiff, by an answer, seeks merely an increase of amount of damages against Owens.

The first objection made by appellant in this Court is that no judgment could properly be rendered against Owens because none was asked against him in the pleadings.

The prayer of the petitioner is as follows: “That, after due and legal proceedings had, there be judgment in favor of your petitioner and against Alfred J. Beyl and the Board of Commissioners of the Police Depártment of the City of New Orleans for the sum of one thousand dollars, with interest thereon from judicial demand, and that, if the Board of Commissioners ¡of the Police Department of New Orleans so elect, upon their own application, that there be further judgment over in favor of said Board of Commissioners of the Police Department of the City of New Orleans against John J. Owens upon' the bond of Alfred J. Beyl, and petitioner prays- for costs, and for general relief.”

November 11, 1907.

It clearly appears that no relief is' prayed for in favor of the plaintiff and against. Owens.

Appellee suggests that the judgment is warranted, though not specially prayed for, under the prayer for general relief.

Courts have, under such prayer, liberally granted relief in cases of omission and allowed ordinary decrees and orders not specifically asked, when germane to the relief that was prayed for against the party cast. But, where the plaintiff made no demand for judgment against one of several defendants, a Court may not, under the prayer for general relief, render any judgment affecting the co-defendant for judgment against whom the plaintiff has not prayed. In Baritan vs. Lefévre, 5 M. 402, the Supreme Court said:

“The general rule is that a judgment cannot allow more than is demanded; a defendant usually prays for nothing but his liberation from the suit. In this case, though, he alleges that the' plaintiff is his debtor; he asks for nothing else. To-that, therefore, and to no more, he'is entitled in this action.”

It is ordered, adjudged and decreed that the judgment in favor of plaintiff, William S. .Russell, and against defendant, John J. Owens, be reversed at plaintiff’s costs in both Courts, without prejudice to the right of plaintiff to renew his demand against said defendant..