Kimbrough v. Walker

Ludeling, C. J. This is a suit for seven thousand two hundred and sixty-two dollars, for damages for the wrongful suing out of an injunction by Walker and Vaught, residents of New Orleans, in 1869, to prevent the sale of property belonging to the succession of W. R. Ward. The injunction was obtained in the parish court, and an injunction bond for $500 was given with R. B. Todd as security. This suit is to make both principals and surety responsible for said damages, without regard to the amount specified in the bond. The defendant'pleaded to the jurisdiction of the court ratione persona as to the principals, and ratione materia as to the security. They further pleaded res judicata. These pleas were sustained, and the plaintiff has appealed. As to Walker and Vaught, the plea to the jurisdiction of the court was properly maintained. They must be sued at their domicile. As to the surety, the plea is not tenable; it is the demand which must test the jurisdiction of the court ratione materia. The demand in this case is over $7000, the plaintiff contending that the liability of the surety for damages is not limited to the bond. It is evident that this question, thus raised, could never be decided if the plea be good, for no court would have original jurisdiction in the matter, if the district court has not. The plea of res judicata is not tenable. Nothing was said in regard to damages in the cases in which the injunctions were dissolved, because the question of damages was not properly at issue in said cases. 1 Rob. 142; 9 An. 303. [567] It is therefore ordered that the judgment of the district court be reversed, and that there be judgment dismissing the plaintiff’s demand against Walker and Vaught, for want of jurisdiction of the court a qua, with costs; and that the case be remanded to the court of the first instance, to be proceeded with according to law against the defendant Robert B. Todd, the appellee Todd to pay the costs of appeal.