Hamilton v. Antoine
| Citation | 157 So. 795 |
| Decision Date | 04 December 1934 |
| Docket Number | 1391 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | HAMILTON v. ANTOINE |
E. S Muse, of St. Francisville, for appellant.
Charles J. Mundy, of New Orleans, for appellee.
On December 6, 1932, this court rendered judgment in favor of Myra Dillon Antoine, defendant in this suit, and against D M. Hamilton, plaintiff herein, in the sum of $ 185, with legal interest from date of judicial demand which was November 9, 1931. 144 So. 614. Hamilton took no further steps in that suit, and on December 9, 1932 through his counsel notified the plaintiff therein, by addressing a letter to her counsel in New Orleans, that he was ready to settle the judgment. The letter of counsel for Hamilton was an instruction to draw on him through the Bank of Commerce & Trust Company of St. Francisville, La., for the principal of the judgment and the $ 10.51 interest, and advising further that all costs would be taken care of by him. Counsel for Myra Dillon Antoine forwarded a draft as instructed, but included in the amount, besides the principal and interest, the following items: Advance costs of court paid the clerk, $ 10; stenographer's fees, $ 39.75; affidavits on petitions, 50 cents; and, costs paid clerk of the Court of Appeal, $ 5. These extra charges precipitated a controversy between counsel which resulted in counsel for Hamilton refusing to pay the draft, whereupon counsel for Myra Dillon Antoine instructed the clerk of court of West Feliciana parish to issue a writ of fieri facias against the judgment debtor, Hamilton. The writ issued, and, under it, the sum of $ 318.15 was demanded. This sum is made up of all items listed above exclusive of the amount of interest, and, in addition thereto, we find an item of $ 12.30 more costs, and $ 65.70 for fees of the jury that sat on the trial of the case. The judgment debtor was duly served with the notice of seizure under the writ, and the amount not having been paid to the sheriff, in due time, Hamilton's property was advertised for sale. The advertisement ran for several issues in the local paper, the sale being advertised for February 18, 1933. On February 4, 1933, counsel for Hamilton sent his check in the sum of $ 224.19 to the sheriff, claiming that that was all that was due under the judgment. On February 10, 1933, Hamilton instituted this suit for injunction against further seizure and advertisement of his property, coupled with a demand for damages in the sum of $ 600 against the seizing creditor, Myra Dillon Antoine.
The petition for injunction sets out in detail all of the matters herein mentioned, and lists the damages claimed as follows: For injury to reputation and feelings, as well as vexation and annoyance, $ 450; expenses incurred in consulting attorney, $ 50; and, fees of attorney for obtaining injunction, $ 100. The petition would show that the seizure of plaintiff's property was made purely out of venom and malice, and that there was absolutely no necessity therefor, but it seems clear that the only ground on which an injunction could have been issued would have been that the writ demanded an amount in excess of that which was due under the judgment, as in fact it was shown to have been so issued under the judgment of the lower court which dissolved the preliminary writ that had been granted and refused plaintiff a permanent injunction. The judgment, of course, rejected the claim for damages. Plaintiff has appealed, and contends that the judgment is wrong in both particulars.
We find no evidence in the record to show that the defendant was actuated by any vindictive or spiteful motive in the execution of this judgment. The truth of the matter is that she appears to have had no knowledge whatever of what was taking place, the altercation having been between her counsel and counsel for Hamilton. Her counsel's contentions were reasonable, and he appears to have been sincere in his conviction that his client was entitled to recover all that he was demanding for her in full settlement of the judgment. It was only when he became thoroughly satisfied that his ideas and those of counsel on the other side could not be reconciled, that he instructed the clerk of court to issue fi. fa. on the judgment. The only basis, therefore, as we have already stated, on which an injunction against the seizure could be maintained, would be that execution issued for a larger amount than was actually due, and this brings into consideration the items on which there was a disagreement between counsel.
The first of these items is with regard to the fees of the...
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