Pointer v. Roth

70 La. Ann. 78

• Court: Supreme Court of Louisiana
• Decided: February 15, 1867
• Docket: No. 1201
• Status: Published

Opinion

Labauve, J.

This appeal is taken by defendant from a judgment perpetuating an injunction, restraining the defendants from selling three mules, four cows and calves, and carriage, and a buggy, valued at $690.

On the 21st of April, 1860, the defendants’ sold to A. P. Marionneaux, all their interests in a certain sugar plantation, and the implements of husbandry and the animals thereon. Having obtained a judgment against Marionneaux for the price, they seized under a fieri facias the plantation and all the animals and movable property thereon, including the said three mules, cows and calves, carriage and buggy, the sale of which said John L. Pointer enjoined, alleging that he had purchased them previous to the seizure, and that they were his property.

The District Court, after hearing his testimony, perpetuated the injunction, and the defendants took this appeal.

From the testimony adduced in the case, we are satisfied that the four cows and calves, the carriage and the buggy, were sold and delivered to the plaintiff, John L. Pointer, and were in his possession; but, we are of opinion that the three mules, if they were sold, were not delivered to said John L. Pointer, and that they remained in the possession of the alleged vendor, A. P. Marionneaux, until they were seized. The testimony shows that A. P. Marionneaux had leased his sugar plantation, together with the said three mules to Renold, who was notified by A. P. Marionneaux that he (Marionneaux) had sold the three mules to Mr. J. L. Pointer,, and that at the expiration of the lease to turn them over to Mr. Pointer; the mules seized are the same that were leased with the plantation, and alleged to have been sold to Pointer. 'When the mules were seized they were in the possession of the lessee, and, consequently, in that of the lessor and alleged vendor, and could be seized by the creditors of the latter. Civil Code, Arts. 1916, 1917, 2243, 2456, 3390. 1 An. 59. 3 An. 462.

We must dissolve the injunction, as to the mules, but are of opinion that no damage should be allowed, the injunction being sustained in part as to the cows and calves, and carriage and buggy, and dissolved as to the mules for want of delivery.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and avoided. It is further ordered and decreed, that the injunction be maintained, and made perpetual as to the carriage, buggy and four cows and calves, and dissolved as to three mules; the defendants and appellants to pay the costs of the District Court, .and the plaintiff and appellee those of appeal.