Gallaher v. Michel

26 La. Ann. 41

Opinion

Howell, J.

In August, 1867, Benner & Ranlett instituted suit against Michel & Gallaher. In December, 1866, Gallaher applied for the benefit of the bankrupt law. In March, 1869, judgment was rendered in the above mentioned suit, against Michel and Gallaher in solido for $1000, from which they took a suspensive appeal. On the eighteenth December, 1869, Gallaher obtained a final discharge in bankruptcy. On the eighth May, 1871, the Supreme Court affirmed the judgment against Michel & Gallaher. Michel, having paid, wassubrogated to the rights of the plaintiffs therein and issued execution, which Gallaher injoined on the ground that he was discharged in bankruptcy from all his debts.

It is contended on the part of the defendant in injunction, and we think successfully, that plaintiff , not having set up this matter as a. defense to tlie suit against him, as he might have done, can not make it a cause for an injunction. See 3 An. 208. This principle is well settled.

It is therefore ordered that the judgment appealed from be reversed, and that the injunction herein be dissolved, and that defendant Michel recover of plaintiff Gallaher, principal, and Peter Casey, surety, on the injunction bond, in solido, three per cent, additional interest on the amount of the judgment injoined, from the date ofithei injunction until payment, and one hundred and fifty dollars damages and all costs.