The New Orleans crescent., 1868-12-08
SUPREME CoURT DECISIONS.
The court met yesterday, full bench present,
and delivered the following important decisions:
BY ASSOCIATE JUSTICE R. K. HOWELL


and delivered the following important decisions:
BY ASSOCIATE JUSTICE R. K. HOWELL.
No. l42s-A. Levi VS.. Converse, Harding Co.
Appeal from Third District Court of New Orleans.
Race, Foster & f. I. Merrick for appellant, and
William Grant for appellees.
The plaintiff has appealed from Judgment dis
solving an Injunction issued upon the following
allegations In the snit Of Converse, Hsrdlng &
Co. vs.. Bloom, Kshn q Co. Judgment in soldofor
sos ~ was rendered January 2lst. 1861, against
the defendants. of whom the plaintiff here was
one. On 23d OF ssme month portion Of the de-
fendspts filed motion for new trial, which on
The same day was granted generally. aud on the
5th of February following said judgment was ille-
sally amended. added TO, changed and signed. On
the 18th Of February an execution vrongfully
issued upon said illegal judgment agsnst
this plaintiff individually; on the 7th of March
counsel fer petitioner and bis co-defsndsnt moved
TO qUssh faid teri Tdci0s on the groHnd that there
was no legal judgment to sustain II, new trial
having been granted generally. On the 18th OF
March. said rule was dismissed, and on the same
: day an alias feIi fdcids was Illegally issued
against petitioner said illegal judgment under
which the sheriff wrongully and illegally seized
property OF petitioner worth $4,000. And from
this he educes the following reasons why the said
judgment and alias teT1 tdctds are null and should
be epjoined:
/. There is no legal final judgment upon which
execution could issue.
2. new trial was granted, generally from the
2lst and since then no trial of the cause has beec
had.
3. Even If the court disagreed with counsel as
10 tie nullity of the judgment, as the rule was
tsken 20 qussh feri faciss ON the ground of the
nulliiy of the judgment upon its face, no ieri
fsciss could issue until the Judgment upon that
rule bad been signed and the delay for appeal
theIefrom elapsed.
4. Petitioner has exercised his legal right and
taken a suspensive appeal from said judgment
NJ on the rnie TO quash the fieri facias.
And upon alleging irreparable injury, he prayed
for and obtained an Injunction which the deten-
dant moved 10 dissolve with damages, on the
ground that the plaintiff is not in law entitled to
the same. and that the proceedings are defective,
irregular and insufficient IN law. This motion was
Overruled, and upon general denial being hled,
the Judgment appealed from was rendered with
twenty per cert. damages and seventy-fVe dollars
attorneys iees.
The first and second grounds urged by plaintiff
are rot such. on the facts alleged, as to author.
ize an Injunction. The petition shows that there
was q judgment rendered and signed. and II i'm
properly signed and altered alleged 1t could be
corrected only by appeal, no charge being made
that il was obtained through error. fraud or some
other cause in law for declaring its reality.
The third and fourth grounds are likewise in
sufficient. rule TO quash fieri facias, what.
ever may be the grounds on which II is based,
does not of itself suspend tie execution of the
writ. An Injunction and not rule TO show cause
is the proper remedy 10 arrest an execution. Il.
80. ID follows, that if the Tuie to show cause
does not suspend an execution, a suspensive ap-
peal from judgment dismissIng that rule can
have no such effect, and that The delay for taking
sucb appeal can have no influence upon the exc
cution OF judgment. The plaintiffs in execution
having the right to Ietnrn tho original, and order
an alias fsri faeies. csnnOt be controlled in the
exercise of that right By the proceedings On
rule 10 quash. which is dismissed. =
The allegation Of irreparable injury does not
bring the case within the causes grounds for
Injunction. whore the facts alleged are not such
a. 10 produce that effect The ground of com.
plant here is the Illegally Of judgment. which,
We have seen, could have been remedied on ap
peal.
Upon fhe whole, we must conclude that plain
tlfl's allegations insufficient in law TO authorize
or maintain the injunction granted, and that the
rule 10 dissolve should have been sustained. We
think the damages allowed by the judge q quo n
dissolvIDg the injunction on the merits are exces
sive, no special damages being proven. Under the
circumstances We think ten per cent. damages
ample.
We must here remark that we dispose o. this
cese in reference solely to the state of facts exist
ing at the trial of the rule to dissolve.
Ii is therefore ordered that the judgment ap-
pesled from be set aisle, and that tue rule taken
on April g. 1867. be made absolute, and the in
junction herein dissolved, with ten per cent dam-
ages on tie amount erjODed, costs Of the lower
court 20 be paid by the plaintiff, and those of sp
peal by defendants.
by ASSOCIATE JUSTICE J. C. TALIAFERRo.
Nc. 1891 Luoien Harris VS.. II. G. Andrews &
Co.: J. II. Oglesby d Co., intervenOrs. Marr Il
Tor appellants. Appeal from the Fifth District
Court of New Orleans.
This suit was instituted on three bills of ex-
charge drawn upon the defendanis, and by them
accepted. These bills, st their respective naturi-
ties, were ouy protested fer non payment. The
plaintiff IS The older under the blank Endorsement
OF the payer. He procured by attachment Of
properly belonging to the defendents 10 the hands
81 - g. d.
and Green Ogesby d Co., and those parties were
seveIally made garnlshees in the suit. j. H.
0glesby Co.. subsequent to their answers to the
neuoEaiions, inteTyened in the cult, sverrng that
The deferdsDts were inuebted to them in the sum
OF S10,Sl9 66 for advances made and for neces.
saTy supplies furnished them, aud annexed their
account end exhibit of their claim.
They claim lien upon the property of de-
PENDANTS in their possession, which they described
10 be ninety lone bales OF cotton, two pieces of
begging and thirty coils OF rope, consigned to
them by the defendants. Also, they stated that
they held eightythree bales OF cotton or Its pro-
ceeds transferred TO them by Brannins, Summers
q Co.. upCn the order of the defendants. Sum-
meTs & Brapnins answered in substance that they
had in hand S72C7 73, proceeds Of eighty-three
bales of cotton, which they had been directed to
turn over to j. n. Oglesby d Co., for account Of
| H. G. Andrews q Co. The other garnishses de-
MED having any thing il their possession belonging
| to the defendants.
The defendants who were absentees and repre-
| sented in the first instance by curator al hoe,
appeared by counsel and answered, pleading a
general denial ard denying specsly that the plain
tiff is bona tide holder of the drafts sued upon.
The usual release bond was given by the de-
| PENDANTS, obligsting themselves 10 appear and
| satisfy any Judgment which might be rendered
| sgsnst them. j. Il. Ogesby & Co. became the
| sureiies OF defendants in this bond aud the at
tachment was set aside and the seizure released.
| In supplemental petition filed shortly after
| these proceedings were taken the plaintiff prayed
| Judgment on the draft which became due ana vas
| protested after the original petition Was flied.
| The process of attachment was again re Irted %,
| eId Oglesby u Co.. Williams, Nixon & Co.. Sum
/ nUrs & Brannns we're cited as garnisheea. No
| attempt was made to bind this attachment, and
| no motion made to set il aside. but defendants
f--------s ss-s-sss st> l4.ss.2 2As
| answer Of Summers Brannin5 already gwen is
| responsive 10 the nterrogatories prOpOunded to
/ them in the second garnishment.
subsequently, Oglesby q Co. answer that II. G..
| Andrews Co. owed them a balance of $I27l 55,
| against which they held forty two pieces OF bag.
| ging end ihirty-siX coils of rope, and that they
| held Summers BraDIins' acceptance or the or.
| der Of II. G. AnoIews Co., 10 turn over to them
balances cue on proceeds of eighty-three bales of
cotton which they had demanded and which sum
| mera & Brannins refused to deliver. They also
fr,tl h. sI4ff had