Brantley v. Pruitt , 175 La. 879 ( 1932 )

My opinion is that the penalty prescribed by article 304 of the Code of Practice is applicable only where the execution of a judgment is prevented by injunction, and is not applicable where the injunction prevents only the seizure and sale of some particular article or piece of property. If it were not so there would be no reason for compelling the judge to base the 8 per cent. interest per annum, and the punitory damages not exceeding 20 per cent., "on the amount of the judgment." This court has observed heretofore that the damages which are allowed under this article of the Code of Practice, without any proof of actual damages, are "punitory in their character." Meaux v. Pittman, 35 La. Ann. 360; Whitney-Central National Bank v. Sinnott,136 La. 95, 66 So. 551. Why should the penalty imposed upon a plaintiff who fails to maintain a writ of injunction which he has obtained be in proportion to the amount of the judgment held by the defendant, unless it be in a case where the injunction has prevented the execution of the judgment itself?

According to the prevailing opinion in this case, one who obtains a writ of injunction to prevent the seizure and sale of his horse or mule, seized with other property, under a judgment for many thousands of dollars, thereby incurs the risk of having to pay 8 per cent. per annum interest on the whole amount of the judgment, and damages not exceeding 20 per cent. on the whole amount of the judgment, even though the holder of the judgment may go ahead with the sale of all of the other property seized to satisfy the judgment, and even though the 8 per cent. interest alone might amount to more than the value of the horse or mule.

I concede that in Betts v. Mougin, 15 La. Ann. 52, the court construed article 304 of the Code of Practice as it is construed in the prevailing opinion in the present case; and Betts v. Mougin was cited with approval in Rivet v. George M. Murrell Planting Manufacturing Co., 121 La. 201, 46 So. 210, 211, 126 Am. St. Rep. 320; but these decisions are so palpably wrong that they should not be adhered to, especially as they did not lay down a rule of property, or announce a doctrine of substantive law, but merely interpreted a rule of practice or procedure. In Rivet's Case the defendant in the injunction suit did not ask for the 8 per cent. interest or the punitory damages allowable under article 304 of the Code of Practice, but asked only for $50 damages for attorney's fees; and he failed to prove any damages for attorney's fees. The district judge, therefore, could not and did not allow any damages for attorney's fees, but he did allow the punitory damages to the full extent of 20 per cent. of the amount of the judgment, even though no such damages were prayed for. This court affirmed the judgment, saying: "Where damages are claimed for attorney fees, the judge may allow the same without proof, to an amount not exceeding 20 per cent. upon the judgment enjoined." But afterwards, in Whitney-Central National Bank v. Sinnott, we reviewed the jurisprudence and the statutes on this subject and held that damages for attorneys' fees could not be allowed without proof of the amount of the obligation paid or incurred by the defendant in the injunction suit. The converse of that proposition is all that the Rivet Case could be deemed authority for, which is not appropriate to the present case.