New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-02-21
THE COURTS.

The case OF the Union Insurance Com
pany against Deynoodt was decided yester-
day by Judge Theard. 1t appears that the
suit was first entered for $3.50 against Dey-
noodt, who, subsequent to citation, paid
$3.50, when the matter slept the sleep of
peace during four years, when the company
sue for the whole amount, get judgment by
default, and confirmed. Deynoodt averred
the company had agreed to accept the
amount he had paid in full settlement
These being the circumstances, the judge
concluded:
His assertion that the $1,000 were paid in
full settlement of the claim which the com
pany had against him is denied by them,
and they say that out of pure spirit OF
iberality, and in order to make the pay
ment of plaintiffs note as little burdensome
to him as possible he being then III greatly
embarrassed circumstances, they agreed
that he might discharge his note by giving
in payment at par the scrip OF the company,
which could then be bought at fifty cents
on the dollar; that, in compliance with TINS
agreement, DeynoOdt TUNED over to the
company 1880 of their scrip, but that he
has failed to make any other payment.
Whether it is so or not, is immaterial to
the solution of the question of nulllty. The
er-Darte Judgment rendered by this court is
radically defective in every respect.
The default entered on the seventeenth
April, 1866, is irregular and illegal. The issue
wasno longer the same between the parties.
Subsequently to citation payment had
been effected, whether intended as partial
payment or in final settlement. The de-
tendant was no longer on his guard. lie
was allowed time to procure sufficient
quantity of scrip to pay his note. The term
was unlimited, and the default, therefore,
could not be taken without first putting
Deynoodt in mora.
The fact of this unexpected default was
never communicated to DeynOodt, and at
ter remaining silent and inactive for four
years. the company caused it to be con-
trmed, and then reOpened the case and OBJ
tanned a new decree. All this was clearly
illegal, and l think that the nuiiity is SO
obvious that it must be pronounced by the
court.
As to the second branch of Deynoodt's
demand, it rests on no legal or equitable
foundation. | am of opinion that he was
under a natural obligation to pay his debt,
and that, therefore, he can not recover.
For these reasons, let the nullity of judg-
ment prayed for be granted, and let Dey-
noodts claim for $1,000 be rejected, defend
ants to pay all costs, the intent of this de-
cree being to leave the parties exactly as
they stood on the thirteenth of April, 1866
after the payment effected by Devnoodt.
Saturday has been fixed upon for hear
ing, in the Sixth District Court, of the case
of Summers and Brannin against Clark,
involving the question whether property
which is imported into this country in
fraud of the revenue laws of the United
States, and gets into possession of an in
nocent party, can be liable, considering the
innocence Of purchaser, to forfeiture under
the revenue laws.
Judge Dibble yesterday decided the case
Of John Croft against the city Of New Or
leans as follows:
John Croft VS.. City Of New Orleans.-The
plaintiff prays for an injunction to restrain
the city of New Orleans from eXcavating a
drainage canal along the centre of Poydras
street. He AYERS to be large owner of
real estate, and taxpayer to consider
able amount, and that part Of his property
fronts on said POydras street, and'that he is
injured in the sum of $40 900 by the proposed
excavation of said canal. Therefore this
application to eDioin the city. A rule was
ordered. and has been heard. A citizen has
no right to interfere with the government
in the manner now proposed in this petition:
no one person has a right to set himself up
as the representative of the people. He
may sue, it is true to abate public or
private nuisance, if such nuisance appears
to have been specially I'M urious to him; but
he can not champion the public in fighting
disagreeable things. The construction
of drainage canals, especially in New Or
leans, is a necessary and legitimate exercise
of the powers of the local government.
The city and other local governments can
not be hampered by the complaints and
actions OF persons who believe they know
better than the authorities where canals
ought to be dug and when. 1t Is prOba Bile
that if the local government, in construct
ing drainage canal for the interest and
advantage OF the whole public, actually
destroys and depreciates the value of a
piece of property, though that property is
not entered upon or taken possession OF.
such person may have the right to seek
remuneration by an action for actual dam
ages sustained. but an apprelended depre-
citation of property does not Justify the
issuance OF judicial process to stop the
wheels of government.
The Injunction will be refused.
The suit Of Newman against the Canal
and Claiborne Street Railroad Company,
for the infringement OF a patent, was dis
missed at plaintiffs cost. The court held
that suits Of such nature are only of iuris-
diction in United States courts.
The suit of E. X. Washington against J.
G. Chadwick was dismissed on the eXcep-
ton Of the defendant.
The exception was a plea of res 09ju-
cdta. 1t was an action brought to en-
force lien on piece of property in Liv-
ingston parish, whereof the defendant was
owner, and he having bought it from Will
liams, who was originally sued by the
plaintiff for fee on account of professional
services. He obtained Judgment against
Williams for 5000. and then brought suit in
the Sixth District Court to enforce the lien,
which suit was pronounced upon, and being
similar in all respects, Judge Dibble ruled
as already described.
In the suit of A. L. Billings against Hug
gins, Judge Dibble refused the Injunction
which was asked for by the plaintiff, to
restrain the defendants and others from
obtaining judgments for damages,
as that would work ipso .facto to deprive
him of his Office of recorder of the Fourth
District.
The snit involving the validity of a title
to property in the Third District, wherein
Mrs. Gaines was to appear propria persona,
went on all day, and the court adjourned.
Mrs. Gaines did not appear, although there
was considerable expectation to witness the
lady pleading in the case.
The new trial on the suit of NJ. S. He'd
rick against the Commercial Bulletin Com
pany was yesterday refused in the United
States District Court.