Todd v. Benoit

Plaintiff as the holder of a certain past due promissory note signed by the defendant caused executory process to issue to enforce the mortgage securing the payment thereof. The property seized was thrice advertised for sale, viz.: On March 31, 1924, when, for the reasons shown in the record, it was withdrawn; on May 31, 1924, when it was bid in by defendant, although according to the terms of a written agreement between the parties it was to be bid in by plaintiff up to the amount of the mortgage indebtedness and then re-conveyed to defendant under the terms set forth in the said agreement; and on July 19, 1924, after defendant had failed to comply with his bid.

On July 11, 1924, defendant enjoined the sale on the ground that plaintiff had agreed to extend the time for the payment of the note, the said agreement being the one which had been entered into prior to May 31, 1924, when the property had been advertised for sale the second time, and which had been violated by defendant himself when he instead of the plaintiff, became the purchaser at said sale.

On a rule taken by plaintiff, the court below dissolved the injunction with damages in the sum of $100, from which judgment defendant appealed.

In this court, counsel for the defendant has filed a motion, in which, after quoting certain testimony given by plaintiff on the trial of the rule to dissolve which is referred to in the brief filed on behalf of the plaintiff, to the effect that at the time plaintiff was testifying he was willing to abide by the prior agreement theretofore breached by defendant, and which in no event could be carried out while the injunction was in effect, he prayed that his appeal be dismissed or that the judgment of the court below be affirmed.

The prayer for the dismissal of the appeal is easily granted. The note sued on is for $1,200, which, even with the stipulated 10 per cent. attorney's fees added thereto, is far below the minimum amount required to give this court jurisdiction.

For the reasons assigned, the appeal herein taken by Alcee Benoit, defendant, is dismissed at his cost.