M'Millen v. M'Keroll

Morphy, J. delivered the opinion of the court. The defendants having sued out an order of seizure upon a mortgage retained by them to secure the payment of the price of a house and lot in the town of Franklin purchased by plaintiff, the latter injoined the proceedings on various grounds which it is unnecessary to notice. The suit had been brought for the first instalment of the price, amounting to $1150, which had become due on the 1st of April, 1837, and which bore interest at the rate of ten per cent, per annum. The defendants made a written motion to dissolve the injunction, and prayed for damages under the statute against plaintiff and his surety. The plaintiff then filed an amended petition setting forth additional grounds in support of his injunction. About eighteen months after, the defendants put in an answer in which they deny all the facts set forth in the original and amended petitions, and pray that the injunction be set aside. They allege that the plaintiff is really and truly indebted unto them in the sum and in the manner set forth in their petition on which the [375] older of seizure issued, and that they are entitled to a privilege as vendors on the property therein described. They pray that they may have a judgment against the plaintiff for the aforesaid amount, and that the property mortgaged may he ordered to be seized and sold to satisfy their demand, together with costs ; and they pray moreover for general relief. Thede-in jominghisorder sale, changes fronftheSra1”!--1™*™ordinaria J11611 b?, for judgment againstthe debt-this kind rm da-Slowed'°Uland Judgment must be given as m an ordinary suit. On these pleadings, and more than two years after the injunction had issued, the parties went to trial. In the meantime two other instalments of the price having become due, the judge below dissolved the. injunction, and decreed the plaintiff and his surety to pay to the defendants, ten per cent, per annum interest on $3450 from the 23d of June, 1837, to the day of the dissolution of the injunction, and ten per cent, damages on $3450, with costs of suit, and directed the sheriff to proceed as if no injunction had been obtained. Both plaintiff and his surety appealed. It is clear that even had the trial below taken place on a motion to dissolve, and the court had thought proper to grant it and allow damages, they should have been awarded only on the amount due at the time the injunction was taken out. The obligation of the surety could not become more onerous pending the suit in consequence of the other instalments falling due; and the statute authorizes this penalty only in relation to the amount actually injoined. But it appears to us that this case is not to be distinguished from that reported in 16 La. Rep., 101, in which we held that a creditor who has sued out an order of seizure, changes the proceedings from the via execu-tivato the ordinaria, when he prays fora judgment against his debtor who has injoined his order.of seizure. This he may sometimes consider it his interest to do ; if, for instance, he is apprehensive that the injunction maybe sustained, he may . .... J prefer taking this course to avoid instituting another suit for the collection of his debt; or if he wishes to obtain a general mortgage on all the property of his debtor. In cases of this kind, no damages should be allowed, and judgment should be 3 ■* 3 given as in an ordinary suit. [376] It is therefore ordered, adjudged and decreed that thejudg-mf}nt nf.thP- District Court be reversed; and proceeding now ^ g.¡ye sac¡1 judgment as, in our opinion, should have been rendered below: it is ordered and decreed that these defendants in injunction do recover of John P. M'Millen, the sum of eleven hundred and fifty dollars ; with interest at the rate of ten per cent, per annum from the 1st of April, 1837, until paid, with costs below; those of this appeal to be borne by the ap-pellees ; and that the premises mortgaged may be seized and sold to satisfy this judgment.