Nuzum v. Gore

24 La. Ann. 208

Opinion

Howe, J.

A sequestration was issued in this case to enforce a vendor’s privilege, claimed hy the plaintiff on sundry cypress logs. The defendant filed an exception that the suit was premature, the amount agreed to be paid not being due.

A mass of testimony wás taken on this question, and it seems to have been very carefully considered by the district judge. He saw ■and beard tbe witnesses, and after an elaborate discussion of tbe facts ■be arrived at tbe conclusion that under tbe agreement of the parties tbe debt claimed by plaintiff was not yet due, and lie therefore sustained the exception and dismissed the suit, with one hundred dollars ■damages.

We do not feel authorized to disturb this finding of the judge upon the question of prematurity, but we think there was error in giving .judgment for damages. The parties reside in the same parish, and such a claim can not be set up in reconvention. Nor is there any statute authorizing such an imposition of damages, as in the dissolution of •an injunction. Knox v. Thompson, 12 An. 116; Morgan v. Driggs, 17 La. 176.

Let 'the judgment be amended by striking; therefrom the amount .awarded ás damages, and as thus amended let it be affirmed.