Lallande v. Trezevant

The opinion of the Court was delivered by Puché, J. Plaintiff claims damages in tlie sum of $2,531.58 against-Mrs. Trezevant, as principal, and G. W. Montgomery, as security, on an iiijiiiic'iou bond and on a forthcoming bond, by means of which Mrs. Trezevant had ariested the sale and obtained the temporary possession of some twenty mules, which had been seized at the instance of plaintiff as the property of d fendant’s husband, as appears from a case entitled Tn zevant vs. Sheriff ct als., reported in 38 Ann. p. 147. In the dt cisión of that case this comt dissolved the injunction taken out by Mrs. Trezevant and reserved the rights of Lallande to claim the damages occasioned to him by said injunction. The ground of the motion to dismiss is want of jurisdiction rationce materias, for the reason that the elements of damages set up by plaintiff are, in the main, fictitious, and intended manifestly to create an appellate interest which does not in reality exist. Appellees’ principal argument is the alleged admission of plaintiff in his petition that the mules had been returned to the sheriff after the rendition of our judgment, and the admission resulting therefrom that the purposes or the forthcoming bond had been fulfilled and exhaused, and that therefore no action could be maintained on that bond now defunct. Hence her counsel contend that the demand must be restricted to the bond of injunction, which was only $1,475. They also contend that as our judgment condemned Mrs. Trezevant to the costs of his *831 injunction, the demand by plaintiff of the sum of $577.18 for costs incurred in the injunction, and for the subsequent sale of the mules, cannot be entertained, as in that case Mrs. Trezevant could be twice condeinned to pay the same costs. The position is absolutely untenable, and the serious argument' ■which counsel for appellees have been driven to in order to support the contention that no claim could be made out ou the forthcoming bond is very conclusive proof that the claim predicated thereon is not absolutely fictitious, and.that it forms an important element in plaintiff’s real demand. While it is true that our judgment has condemned Mrs. Trezevant to pay costs in her injunction suit, it is equally true that the surety is. not included in the judgment, and that a portion of the costs presently claimed by plaintiff have been incurred since the dissolution of the injunction and partake of the nature of damages resulting therefrom. It also appears that in a supplementary petition, which appellees’ counsel have apparently lost sight of, plaintiff corrected his previous allegation in which he had acknowledged that two of the mules had died of a natural death, and that the eighteen others had been turned over to the sheriff and by him sold under the original writ. In his supplementary petition, plaintiff charges that the two missing mules had not died, but that they had been illegally retained by Mrs. Trezevant, who was responsible therefor, together with her surety on the forthcoming bond. It therefore follows that the damages claimed by plaintiff, even if not justified under the law and the facts of the case, are at least not so fictitious as to affect our jurisdiction, which is made apparent on the face of the pleadings. The motion to dismiss this appeal is therefore dismissed.