Cohen v. Avery

26 La. Ann. 359

• Court: Supreme Court of Louisiana
• Decided: April 15, 1874
• Docket: No. 3284
• Status: Published

Opinion

Wyly, J.

The plaintiffs, judgment creditors of Joseph Canale for $941 85, caused their execution to be levied on the stock and movables contained in store No. 50 Royal street; thereupon Juan Garcia y Mora injoined the sale, claiming to be the owner of the property seized. The injunction was dissolved, and on appeal the judgment was affirmed by this court with twenty per cent, damages in sólido against the principal and surety on the injunction bond. 22 An. 417. In the meantime, that is, pending the injunction, Avery, the sheriff, improperly released the seizure, and Mora sold the property at auction.

After the decision of this court, the plaintiffs instructed the sheriff to proceed with the sale of the property which had been improperly injoined by Mora.

Finding, howeyer, that the sheriff had improperly released the seizure of the property, which was sufficient to pay their debt, and that Canale had disappeared without leaving any property to be seized under execution, the plaintiffs brought this suit for damages resulting from the illegal release of the seizure by the sheriff and from the improper injunction by Mora, and prayed judgment against them insólido for the amount of their judgment against Canale, $941 85, which sum they failed to realize by reason of the illegal acts of said Avery, sheriff, and Mora.

Avery called in warranty Mora and the surety on his injunction bond, Jose Garcia y Boros. The court gave judgment for the amount-claimed against Avery and Mora, and also gave Avery judgment in warranty for like amount against Mora & Boros. From this judgmentMora & Boros have appealed. Avery did not appeal.

We fail to perceive any obligation existing between the appellants and the appellees. The suit is not on the injunction bond. The injunction was dissolved, and this court condemned the principal and the surety on that bond in solido to pay the plaintiffs twenty per cent, damages on the amount of the writ injoined. 22 An. 417.

The immediate cause of the damage complained of was the illegal-release of the seizure by the sheriff pending the injunction. For this loss the sheriff and the sureties on his bond might be held liable, because it resulted from a dereliction of duty by that officer. This-illegal release was an event occurring subsequent to the injunction, and did not result necessarily from the exercise of that writ. Now,, whether the property after the release was disposed of by Canale orMora is immaterial. After the release it was Canale’s property, and he might legally dispose of it or permit Mora to do so. That Mora, disposed of a judgment debtor’s property after it had been released from seizure, did not create a legal obligation against him in favor of the judgment creditor of the party whose property he had disposed of. Legal obligations do not arise in that way.

We also fail to perceive any legal obligation to be enforced under-the call in warranty. The principal and surety on the injunction bond did not contract to warrant the sheriff against the consequences of his-own illegal acts. The injunction in no manner compelled him to release the seizure of the property.

We think the judgment against the appellants should be reversed.

It is therefore ordered that the judgment of the plaintiffs against the defendant Mora and the judgment in warranty of the defendant Avery against Mora & Boros bp annulled, and it is now ordered that there be judgment in favor of the appellants, appellees paying costs of appeal.