Smith v. Jones

23 La. Ann. 43

• Court: Supreme Court of Louisiana
• Decided: January 15, 1871
• Docket: No. 3000
• Status: Published

Opinion

IIowe, J.

Jamos H. Jones instituted executory proceedings in the Fifth District Court, for the parish of Orleans, for the collection of a note made by A. W. Horlor and secured by mortgage and vendor’s-privilege.

The plaintiff in this case, widow and administratrix of Horlor, and Emelia Horlor, daughter of the deceased, sued out the injunction, now before us, to arrest the seizure and sale on various grounds, which do not seem to be either established by the evidence or insisted upon in the argument.

A rule was taken by Jones, defendant in injunction, to dissolve the ■same, on the grounds that the petition was untrue; that it set up no cause of action; that no special relief except an indefinite delay was asked, and that the bond was too small.

The case was tried summarily, and judgment given by the court « qua, dissolving the injunction, with ten per cent, damages, and the plaintiffs appealed.

The injunction appears to have been sued out merely for delay, and the points made hero are purely technical.

The trial of the rule occupied five days in the court below. It seems that when the cause came up, at 10 A. M. of the second day, the witnesses of the plaintiffs were not present, and attachments were issued returnable at noon. The judge proceeded with the trial of another cause; a jury case. At noon, witnesses having arrived, the judge left the jury case and proceeded with the summary trial of the rule in the adjoining room, used as a clerk’s office; but yet in open court, in the legal sense, there being a judge, a clerk and a sheriff, and the record showing that the court was open. The parties to the jury cause, who were thus left, are not before ns, and do not complain; and we can not perceive that the plaintiffs have any legal reason to consider themselves aggrieved. It will hardly be pretended that, of the two rooms in question-, one is much better than the other, and certainly not, that it is sacramental to use one for holding “open court” rather than the other. And, finally, it is not pretended that on the first, third, fourth and fifth days of the trial, there were any irregularities in the method of holding the court.

It is suggested parenthetically in the brief that the court a qua was without jurisdiction. The point is untenable. See Graham v. Markey, 22 An.

Judgment affirmed.