Baker v. Michinard

17 La. Ann. 251

• Court: Supreme Court of Louisiana
• Decided: November 15, 1865
• Status: Published

Opinion

Jones, J.

This is an appeal from the Sixth District Court of New Orleans. The defendant, Francois Michinard, being sued via execuiiva, enjoined proceedings on the ground set forth in his petition of injunction. A rule was taken by the defendant in injunction on the plaintiff to show cause why said injunction should not be set aside, on the ground that plaintiff, not being a loyal citizen of the United States government, “has not the right to stand injustice, nor capacity therefor. ” The rule was tried contradictorily; and, after argument, made absolute.

The injunction was dismissed with twenty per cent, damages on the amount of judgment enjoined against plaintiff in injunction; Francois Miehinard and his surety on the injunction bond; Alice Caraters in solido.

The court below erred in dismissing the injunction. Whatever may have been the political status of plaintiff in injunction, who was really a defendant, contesting by that mode the claim of the original demand of the plaintiff in the executory proceedings, that is not a means to be used to deprive plaintiff in injunction of urging any legal defence he may have. To call a party into court and then object to his capacity to stand in judgment, is so inconsistent with every principle of justice that it cannot be tolerated by this court.

Therefore, it is ordered, adjudged and decreed, that the judgment of the lower court be reversed, the rule setting aside the injunction be dismissed, and the cause remanded-for further proceedings, and the costs of appeal be paid by plaintiff and appellee.