Rawlings v. Bowie

33 La. Ann. 573

• Court: Supreme Court of Louisiana
• Decided: April 15, 1881
• Docket: No. 8224
• Status: Published

Opinion

The-opinion of the Court was delivered by

Todd, J.

Thomas P. Farrar is appellant from a judgment dissolving an injunction sued out by Mm under the following facts, substantially set forth in his petition :

That he, said Farrar, and his co-plaintiff, Rawlings, were the owners in indivisión with all the defendants, except Weatherl}’, of two-thirds of the Hollywood plantation, in the parish of Tensas.

That the defendants, Matilda J. Bowie, Andrew S. Routh, and Annie M. Bowie, with a full knowledge of the plaintiffs’ interest in said plantation, had recovered a judgment against John R. Weatherly as a trespasser on said plantation, amounting, at the date of the institution of the suit, to $10,557, in which the share of each of the plaintiffs was $1161. That the plaintiffs fear that the entire amount of the judgment thus recovered, and in which they are entitled to share, will be paid over by Weatherly to the plaintiffs in the suit in which the judgment was rendered to their, the petitioners’, great injury and. damage.

All the parties in interest were asked to be cited, and judgment prayed for decreeing the plaintiffs to be entitled to the interests claimed by them in the judgment, and that Weatherly be enjoined from paying over to the plaintiffs in that judgment the amount of their respective interests in the same, or in the sums which Weatherly was adjudged to pay under it.

The motion to dissolve the injunction, which was sustained, contained substantially, the following grounds :

1. That John R. Weatherly, against whom the injunction was directed, was a third person, and this was not a case in which an injunction could issue, under the articles of the Code of Practice, against third persons.

2. That there is no allegation that either of the defendants are insolvent, or that plaintiff 'was in danger of losing the money if paid over to them.

3. That the injunction worked a great hardship to Weatherly by preventing him from satisfying the judgment, the amount of which by the terms of the decree increased 12000 per annum till paid.

The suit was dismissed as to the plaintiff A. D. Rawlings, on motion of H. R. Steele, and upon his showing that he had become the subrogeeof said Rawlings, and J. P. Earrar became the sole plaintiff in the case.

The motion to dismiss was tried and sustained, and the plaintiff,. Parrar, condemned to pay one hundred dollars damages. Prom which judgment the present appeal was taken.

Por the purposes of this motion the allegations of the petition must be taken as true.

A party is entitled to an injunction to prohibit one from doing an act which he contends may be injurious to him or impair a right which he claims. C. P. 296.

It is evident from the allegations of the petition, that i£ the defendant, Weatherly, pays to his co-defendants the entire judgment in question, he would do an act that might prove injurious to the plaintiff and impair the right that he asserts in this suit. That right is the ownership of part of this judgment and the right to receive from the defendant in such judgment, to the extent of his interest therein, the money-which he alleges Weatherly was about paying to other parties.

If his allegations are true, he was entitled to a decree recognizing-his interest in the judgment, just as he would be entitled to have recognized a just claim asserted by him to any other species of property. If Weatherly paid this judgment to the plaintiffs therein, the judgment-would be extinguished and the plaintiff’s right in the judgment destroyed' with the extinction of the judgment itself. Plaintiff might in such event-have recourse against the parties who had received his money, some of whom it is shown were non-residents of the State; but he would be-precluded from enforcing payment from Weatherly, the judgment debtor. If he was the joint owner of the judgment, he had a joint right with the other owners to control it, to enforce payment of it, and to receive his share of the money paid in satisfaction of it; in short, to exercise all the rights that his co-proprietors in the judgment could exercise. These-rights would have been impaired had the judgment been extinguished by payment made by the defendant to other parties, and parties who ignored the interests of the plaintiff therein. Consequently he had an undoubted right to prevent the payment of the judgment to other parties, to the extent of his share of the judgment, until he could obtain a recognition of his alleged interest therein by the proper decree.

Nor was it necessary for the plaintiff to allege the insolvency of the parties to whom payment was about to be made. That was a matter of proof that he 'might or might not offer on the trial of the cause to show the just and reasonable apprehension of the injury to result from the acts of the parties as charged in the petition. It was sufficient to allege, as was done, that the act or acts would cause him damage. And if such general allegation of injury was insufficient, its sufficiency should have been questioned by the proper exception before default was taken on the petition. The motion to dissolve was filed after default. And this part of the motion, now under consideration, was equivalent to an exception that the cause of action was not sufficiently set forth in the petition.

Nor is there any force in the last ground urged for the dissolution of the injunction, namely, that the delay caused thereby would work hardship to Weatherly. Weatherly was not enjoined from paying the entire judgment, but only to the extent of plaintiff’s alleged interest in it. It is not easy to perceive any peculiar hardship in such restraint, and it could easily have been avoided by properly depositing the amount; but whether a hardship or not, if plaintiff was a co-proprietor in the judgment he had the right to prevent Weatherly from paying his part of it to any one else.

For th'ese reasons we think the injunction was improperly dissolved.

It is, therefore, ordered, adjudged and decreed that the judgment be reversed and the injunction reinstated, and the case remanded to be proceeded with according to law; defendants to pay costs of appeal.

Rehearing refused.