Malmore v. Martinez

Supreme Court of Louisiana

Malmore v. Martinez

80 So. 212, 144 La. 95, 1918 La. LEXIS 1702

CourtSupreme Court of Louisiana

DecidedNovember 4, 1918

DocketNo. 23078

StatusPublished

Cited by3 cases

This text of 80 So. 212 (Malmore v. Martinez) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Malmore v. Martinez, 80 So. 212, 144 La. 95, 1918 La. LEXIS 1702 (La. 1918).

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Opinion

LECHE, J.

Defendant, having leased a residence to one Desvignes, who failed to pay rent, caused a writ of provisional seizure to issue and seized all the contents of the house. Plaintiff, a subtenant under Desvignes, to whom she had paid her rent, claiming to be the owner of furniture and sewing machines included in the seizure and worth some $230 according to her testimony, made demand, accompanied with a sworn statement as required by Act No. 37 of 1882, upon the constable for the release of her'property from .seizure; but defendant refused to comply with her request and furnished an indemnity bond in favor of the constable. Unable to furnish bond in order to enjoin the sale, plaintiff was compelled to let her property be sold by the constable, and she instituted the present suit to recover compensatory damages in the sum of $2,600.

The judgment of the district court was rendered in favor of plaintiff for $250. Defendant appealed, and plaintiff answered by praying for an increase of the judgment as originally prayed for in her petition.

[1] This suit was brought by Corinne Malmore-and by her husband, James Malmore, to aid, authorize, and assist her, and therefore all questions relating to her authority to sue, and to the nature of the ownership of the property upon which the present demand is founded, may be eliminated from discussion. Any judgment which may be rendered herein will be binding upon James Malmore as well as upon his wife.

[2] Plaintiff owned furniture and two sewing machines. She was a seamstress, and these machines were necessary tools by which she earned her living. She was a subtenant of Desvignes, occupied the upper portion of defendant’s house, and had paid her rent to Desvignes in full up to the time the provisional seizure was obtained and executed by defendant. All her furniture as well as her sewing machines were wrested from her by the seizure. She took such steps as were within her power to relieve her situation, and even offered defendant $35, as a compromise, to obtain the release of her property. [97]*97These facts are undisputed. Defendant, how ever*, suspecting that plaintiff was in league with Desvignes in order to defeat his claim for rent, was unyielding and insisted on prosecuting what he conceived to be his rights. He obtained a judgment against Desvignes upon his claim for rent and proceeded to sell plaintiff’s property and to take the proceeds thereof in satisfaction of his judgment.

Plaintiff is a sister of Desvignes and lived in the. house with him. This may have led defendant to believe that she was conspiring with Desvignes to defraud him of his rent. The record, however, fails entirely to establish the existence of any fraud or deceit on the part of plaintiff or to verify defendant’s suspicions. Plaintiff is therefore clearly entitled to compensation for the injury which she has sustained. We believe that an award of $500 would be just and fair.

For these reasons, it is ordered that the judgment. appealed from be increased from $250 to $500, and as thus amended that it be_ affirmed at the cost of defendant and appellant.

O’NIELD, X, takes no part, not having heard the argument. PROVO STY, X, absent on account of illness, takes no part.

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LECHE, J.

Defendant, having leased a residence to one Desvignes, who failed to pay rent, caused a writ of provisional seizure to issue and seized all the contents of the house. Plaintiff, a subtenant under Desvignes, to whom she had paid her rent, claiming to be the owner of furniture and sewing machines included in the seizure and worth some $230 according to her testimony, made demand, accompanied with a sworn statement as required by Act No. 37 of 1882, upon the constable for the release of her'property from .seizure; but defendant refused to comply with her request and furnished an indemnity bond in favor of the constable. Unable to furnish bond in order to enjoin the sale, plaintiff was compelled to let her property be sold by the constable, and she instituted the present suit to recover compensatory damages in the sum of $2,600.

The judgment of the district court was rendered in favor of plaintiff for $250. Defendant appealed, and plaintiff answered by praying for an increase of the judgment as originally prayed for in her petition.

[1] This suit was brought by Corinne Malmore-and by her husband, James Malmore, to aid, authorize, and assist her, and therefore all questions relating to her authority to sue, and to the nature of the ownership of the property upon which the present demand is founded, may be eliminated from discussion. Any judgment which may be rendered herein will be binding upon James Malmore as well as upon his wife.

[2] Plaintiff owned furniture and two sewing machines. She was a seamstress, and these machines were necessary tools by which she earned her living. She was a subtenant of Desvignes, occupied the upper portion of defendant’s house, and had paid her rent to Desvignes in full up to the time the provisional seizure was obtained and executed by defendant. All her furniture as well as her sewing machines were wrested from her by the seizure. She took such steps as were within her power to relieve her situation, and even offered defendant $35, as a compromise, to obtain the release of her property. [97]*97These facts are undisputed. Defendant, how ever*, suspecting that plaintiff was in league with Desvignes in order to defeat his claim for rent, was unyielding and insisted on prosecuting what he conceived to be his rights. He obtained a judgment against Desvignes upon his claim for rent and proceeded to sell plaintiff’s property and to take the proceeds thereof in satisfaction of his judgment.

Plaintiff is a sister of Desvignes and lived in the. house with him. This may have led defendant to believe that she was conspiring with Desvignes to defraud him of his rent. The record, however, fails entirely to establish the existence of any fraud or deceit on the part of plaintiff or to verify defendant’s suspicions. Plaintiff is therefore clearly entitled to compensation for the injury which she has sustained. We believe that an award of $500 would be just and fair.

For these reasons, it is ordered that the judgment. appealed from be increased from $250 to $500, and as thus amended that it be_ affirmed at the cost of defendant and appellant.

O’NIELD, X, takes no part, not having heard the argument. PROVO STY, X, absent on account of illness, takes no part.

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80 So. 212, 144 La. 95, 1918 La. LEXIS 1702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malmore-v-martinez-la-1918.

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