
    NO. 7928
    FELIX J. DREYFUS VS CHARLES CANGELOSI.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   opimo».

By his Honor John St. Paul.

Plaintiff issued executory process against Widow Papalia, ;ho thereupon enjoined the execution of the writ, defendant Becoming surety on the injunotion Bond. The injunction was 'dissolved, Widow Papalia appealed, and the Supreme Court affirmed the Judgment (143 la 530). Thereupon plaintiff presented a certified oopy of the deoree to the clerk of the District Court, who endorsed thereon "Reoeived May 29th 1918? Jos Doyle, Dy Clerk1'» and placed it in the fili or record of the case. Plaintiff then proceeded with his -writ»

Plaintiff now sues for attorney’s fees and loss of interest during the time he was kept put of his money, the property having eventually been sold for much less than the amount of his calim.

The defendant sets up fin effect) that the action is premature, heoause Widow Papila has filed suit to annul the proceedings out of which this action grown; urging ^ that'the trial of this case should await final Judment in that.'

The plea Is without merit. That suit was actually filed after this; hut even had it been filed before, that would have made no difference, since the plaintiff oannoj# be made to await the result of a suit whioh Mrs. Papila has so entirely under her control that she may discontinue and renew the same when and as often as she pleases. Moreover the matters set up in that suit are oprn to defendant here, who has In fact set them up as part of his defense.

II.

It is urged that the proceedings in execution of plaintit'iff *s ^ are all null and void; for this, that the decree of the " , j ” /iejlsyeLut-Supreme Court was never "rooeived" in the court below, thus leaving the injunction still in force, by reason of the suspensive appeal tafeen and still undisposed of aupad the District Court.

Article 619 C. Í. rdquires that before the judgment of an appellate court be executed it shall be recorded in the inferior court. In Amet vs Boyer, 42 An 801, it was held that this did not require that such judgment be entered on the minutes of the inferior court, and it sufficed that it be recorded in the boofe provided by Secs. 20 and 24 of Act 66 of 1866 (now Seotlona 474 and 475 of Rev. Stat.) commonly called the Judioial Record. But as that statute allows the clerfe six months in whioh to do the physical aot ' of transcribing such judgment (together with the pleadings, etc), and the presumption is that the clerk has done, or will do, his duty in the premises (120 la 511) it follows that the judgment must be considered "reoorded'.' from the time it is received by the clerk, and put into the file or record of the case. ^ 3 3 0^ y bsf

Ill

The point is made that as plaintiff was only the holder, and no¡5 the ownsr, of the mortgage notea sued on, the damages fif any are due) belong to his prihoipal and are recoverable only by the latter. This is not well founded. The notes aere nogotiable, and plaintiff as holder was for all purposes the owner of them. Who was the true owner was immaterial, except to meet one alleged ground for the injunction, to wit, that in the original mortgage plaintiff was both Rotary and mofcbgagee. Rut the fact is that plaintiff himself incurred the attorney's feds, and was himself entitled to collect the mortgage notes some thirty months before the injunction allowed him to do so. Ror these damages the defend: nt must answer, and it is n» concern of his that plaintiff will or may account to some other person having an equitable interest therein.

IT.

The objection that the principal on the injunction bond was not made a party to this suit, is without merit; defendant being a Judicial surety (G. 2. EW5)

V •

The object of an injunction bond is "to secure the payment of such damages as may have been sustained by the defendant in case it should be decided that the injunction had bean wrongfully obtained". 0. r. FOd. Hence when the injunction is finally sat aside the defendant is olearlji entitled to damages (4 La 524). And attorneys fees form part of those damages (2 La 102; 5 La 246

January 10th, 192L.

We tjsink the attorneys fees in that case were well worth at least $250; and 1c¡o for two and one half years on oyer $5000 due plaintiff, make some £>850 more. But the hond was for only $750 and the judgment was for that amount, which we think is correct.

She judgment appealed from is therefore affirmed.

Judgment Affirmed.

Hew Orleans la,  