Morgan v. Driggs

The judgment of the court was pronounced by Slidell, L Driggs, having obtained a judgment against Morgan, issued execution, and Morgan then obtained an injunction upon the following grounds: 1st. That the fees of the clerk of the Supreme Court, included in the writ of fieri facias, had been paid by him. 2d. That when Driggs was about to institute his suit against Morgan, he employed William Beatty, a member of the bar, to attend to the suit, and agreed to give him thirty-three and one-third per I cent of the amount recovered in said suit, as a compensation for his professional I services therein; and that by virtue of said agreement the said counsel was entitled to receive one-third of the amount of the judgment to be rendered in. favor of Driggs against Morgan. That Beatty transferred his rights to Marshall, who transferred them to Jlsley, who transferred them to the present plaintiff. 3d. That ha is the holder of several notes, drafts, and due bills made by Driggs; that Driggs has made a simulated transfer of his judgment for the purpose of defeating his offsets, and that the notes, drafts, and due bills were owned and held by him prior to the transfer of the judgment. [125] Upon motion the court below dissolved the injunction, except as to the amount of the fees paid to the clerk of the Supreme Court. The plaintiff in injunction has appealed, and the appellee in his answer to the appeal asks for the entire dissolution of the injunction, and for damages and interest. As the clerk’s fees had been paid by Morgan, the injunction was properly maintained for that item. The agreement between BeoMy and Briggs, as pleaded, being an agreement for one-third of the judgment to be recovered, was void under the statute of 1808, and could not form the basis of an action. But, at the hearing of the motion to dissolve, the plaintiff, having produced the written agreement, prayed leave to amend by setting it forth according to its true tenor, to wit, an agreement for a compensation of thirty-three and one-third per cent on the amount to be recovered. The court refused to allow this amendment. If the amendment had been granted and the agreement been conceded to be legal, still the petition would have been defective. The agreement was personal, and, fairly construed, depended upon the future rendition of professional services. At the date of the agreement the suit was contemplated; and the attorney was not only to institute, but to carry on the cause to judgment. The words of the agreement are: “ In the suit about to be institued for me by my attorney at law, William Beatty, against Col. Charles Morgan of this parish, I hereby agree to give said Beatty, for his professional services in said suit, thirty-three and one-third per cent on the amount recovered.” Non constat, under the allegations of the petition either as originally drawn or as proposed to be amended, that the attorney had fulfilled his part of the contract, or had acquired a lawful right against his client to any payment under the agreement. As to the other claims, there is no allegation that they were acquired subsequently to this date of the judgment on which the execution issued, or at such a time that they could not have been pleaded in defence to the suit of Briggs. Under the authority of Kennard v. Henderson, 9 Rob. 166, and the cases there cited, they could not be made the basis of an injunction. We are of opinion that the costs of the injunction were improperly adjudged to be paid by Briggs. It is true that the trifling amount of $15 60, the fees of the clerk of the Supreme Court, had been paid by Morgan before the fieri facias issued, and that the costs were included in the writ. But there is no allegation in the petition that Briggs had any notice whatever that Morgan had paid them. If such notice had been given, wé may well suppose that Briggs would haye credited the amount on the fieri facias. It would be inequitable to inflict upon him the costs of this injunction by reason of a partial payment of this sort, of which he had no knowledge. The sole legal ground for diminishing the amount for which thh fieri facias issued being this unnotified payment of a trifling sum, we consider the defendant in injunction entitled, upon the fair interpretation of the act of 1831, to damages upon the amount enjoined which was really due. See also Rowley v. Kemp, 2 Annual Rep. p. 360. It is therefore decreed that the judgment of the District Court, so far as it maintains the injunction for the sum of $15 60, fees of the clerk of the Supreme Court, and so far also as it dissolves the injunction as to the residue of the amount of the fieri facias, be affirmed. And it is further decreed that so much of the judgment of the court below as condemned the defendant in injunction to pay the costs of the injunction and rejected his prayer for interest and [126] damages, be reversed, and that the said Driggs do recover from the said Charles Morgan, and Charles Morgan, junior, his surety, in solido, interest at the rate of ten per cent per annum, from the 20th July, 1847, until the judgment be paid, upon the amount of the judgment enjoined, to wit, upon $1,500, and the further sum of $100 damages, and costs in both courts.