Flynn v. Rhodes

Spoitord, J. This suit was brought to annul a judgment-rendered against the plaintiff, upon default, without previous citation according to law ; it was accompanied by an injunction to restrain the defendants from proceeding with an execution which they had sued out under the judgment, and concluded with a prayer for damages. The injunction was perpetuated without damages, and the plaintiff has appealed. The plaintiff had no acknowledged domicil or residence in the parish of East Feliciana at the date of the pretended service of citation there. The service, as indicated by the return, was manifestly had, and the judgment rendered against the plaintiff, after default thereupon, was null and void, as he made no appearance in the cause. The injunction was, therefore, properly made perpetual. The plaintiff and appellant complains of various alleged irregularities in the rulings of the court a qua, and contends that the cause should be remanded for a new trial upon the question of damages. If all the rulings complained of had been otherwise, and the rejected evidence admitted in its full extent, we do not think damages should have been awarded in this proceeding. The only damages suffered must have arisen from the seizure under the judgment and the necessity of enjoining it. As to the seizure, the extravagant conjectures of the plaintiff’s witnesses are wholly unsupported by the facts. The costs of the suit have already been awarded to the plaintiff, under the authority of the cases of Smith v. Bradford, 17 L. 266, and Hill v. Noe, 4 An. 304. Counsel fees for prosecuting this suit was correctly disallowed. Judgment affirmed, the appellant to pay the costs of appeal.