Brock v. Brand

Bp: Dinkelspiel; J, This controversy presents a two fold attitude. The first on the allegations of petition is that plaintiff is the sole owner and proprietor of the Model Machine Works, looated in the City of Hew Orleans, at 1110 Camp Street, where he is in full and complete possession of a going concern. That defendant, a resident of this City, asserting some right, title or ownership in and to said Machine Shop, or some of its contents, threatens to take physical possession thereof and thereby destroy petitioner's active1business which will cause him irreparable Injury and that a writ of injunction is neoessary in the premises. Alleging further that defendant has no right of title or interest in or to said shop or any of its contents or any of its machines and he has no right to assert any claim thereto or to take possession thereof or any part thereof. Alleging further that during the early part of 1920 the defendant entered into a verbal partnership with petitioner under the terms of which he advanced certain amounts in the purchase o1 said machine shop's equipment and so forth, amounting to $772.54, and alleging further that said partnership was by mutual verbal consent of both parties, dissolved on the 25th day of May 1S20; that plaintiff was to take over said shop for Ms individual account together with its assets and liabilities, which he did; that amongst other assets due the said oo-partnership-and taken over by plaintiff was the admitted past due account against the defendant for work done by said oo-partnership for him, aggregating an amount largely in exfess of the amount due by said co-partnership to said defends,nt and for -which amount, $727.39, plaintiff claims judgment and finally praying that a writ of injunction restraining defendant from removing or attempting to remove any of the machines or machine shop equipment at 1110 Camp Street, from said premises, and that defendant remain [106] so enjoined ending these proceedings and the.!; he be cited to appear and answer to aemcnd and that after due legal delays and prccee-ungs had, plaintiff recover judgment against defendant .•?rpesi»ting the injunction issued end further rendering judgment against him decreeing said machine shop together '.vith ell of its ■-quipment end machines therein to belong to him and for judgment against him for the sum of §737.39, with legal interest from; judicial demand, for costs and for general relief. On the allege:lons of this petition sworn to by plaintiff the Judge ordsnd that upon plaintiff furnishing him. bond in the 3ura of $800.00, the injunction issue. To this petition there ,vas annexed itemized st ? :e.:.ent3 of decite and creditj svi ■ er.cing according to 1.e the amount claimed as due by defendant to plaintiff. To this petitioner there was filed by the defendant on exception shot being a resident and domiciled in the Parish of Jefferson, thst this Court r. 5 no jurisidicticn ever the person of this defendant end sz specially pleads exception of jur-isd’ v.-.'.i.r. of this Court "rsticnae uer-cnce". On the prayer of this exception after hearing the parties, the Judge made the following order: "lhe evidsr.oe discloses that the defendant is a resident and citizen of the Perish of Jefferson. This deprives this Court of jurisdiction as to the demand and the injunction issued. Suit dismissed." From this judgment there is this appeal. The first question presented to us in this case is that the exception as such was not sworn to as required by Act 300 of 1914, Section 6. Our answer to this is that this was not specially and specifically in the lower Court as it should have been done under the Practice s,nd Pleadings Acts, henoe for the first time it was presented to this Court end we cannot maintain it under the circumstances. [107] The next question presented, whether the partnership having been dissolved some months prior to the filing of this suit for injunction, there can or cannot be a judgment against the defendant, a citizen and resident of the Parish of Jefferson. The authorities are ample and in our opinion uniform and they hold, together with the Article 163 of the Code of Practice, which reads "It is a general rule in civil matters that one must be 3ued before his own judge, th't is to say, before the judge hsving jurisdiction over the place v/here he has his domicile or residence." The partnership hsving been dissolved months prior to the filing of the petition the claim asserted must therefore be 3ued on in the Parish in which the defendant has his domicils. Ranlet vs. Collier White Lead Co. 30 An. 56; David vs. Eloi, 4 La. 107; Lambert v. Veuter, 6 Reb. 137; Hobson v. Whittemore, 13 La. 433. We are therefore of the opinion thst the allegations of the petition for an injunction alleged facts sufficent to justify its issuance and therefore believe th.‘ c the fimnfcXBX Court erred in that particular, but we s.re of the further opinion that the claim against defendant for the amount stated must be sued upon in the Parish of defendant’s ¡acee-exst domicile, which is the Parish of Jefferson under the evidence of this ci.se. For the reasons a¡singed it is ordered, adjudged and decreed thst the judgment of the Court aqua in so far as the injunction is concerned be and the same is hereby avoided, annulled and reversed and further ordered, adjudged and decreed plaintiff that in all other respects as tc the claim of/' ' against defendant it must be sued upon in the Parish in which defendant h&8 his domicile. This cause is therefore remanded on the question of the injunction for trier, to the Court aqua, costs to be paid by the exceptor the defendant in this cose, the ether costs to remain in abeyance until final decision cf this cause. -Judgment reversed in part an L maintained in p.r:.-