Smith v. Merchants' Mutual Insurance

1 Gunby 16

• Court: Louisiana Court of Appeal
• Decided: July 1, 1885
• Status: Published

Opinion

Gunby, J.

Where plaintiff in injunction swears “ to the best of his knowledge,” the affidavit is not invalidated by the omission of the words “ and belief.” 5 An. 558; 13 An. 88. There are no sacramental words in our system of practice.

2. Where there is a final judgment, neither the authority to compromise it nor the compromise itself, need be in writing, C. C. 2997; 21 An. 477. Art. 3071, C. C., relates to the settlement of a pending litigation or the prevention of an anticipated suit.

3. But the authority to compromise must be express and special, i. e., given to a particular person for that particular purpose.

4. The original judgment creditor authorized his attorney to compromise the judgment at his discretion — but he subsequently, to the knowledge of his attorney and the debtor, transferred the judgment; held : No compromise made after the transfer is binding on the transferree, nor will a payment made by the debtor to the attorney for the purpose of compromise be credited on the judgment. 6 An.

5. Where plaintiff in injunction is partially successful, no damages will be allowed on dissolution of the injunction.