
    Mrs. Jennie Clements, Wife, etc.- -vs- George S. Dawson.
    No. 7961.
    Court of Appeal. Parish of Orleans.
    Dinhalaplal. J.
   PINTOLSPIIL. J.

Plaintiff represents that she Is the lasses of the premiaos No. 1639 Terpsichore Street, in this City, paying the sum of $37.50, per month, said lease being dated August, 1st. 1919, for twelve months , begining Ootober, 1st. and ending on the last day of September, 193o. That she is also the owner of the furniture in said premises; that she resides therein with her married daughter, wife of defendant, and her daughter's two ohlldren.

That for the last eleven months, defendant who is the husband of plaintiff's daughter, committed various aots of violsnoe upon his wife and attempted to do likewise on plaintiff. Also, complaining of various aots of brutalllty against her daughter, and also uselng vulger and indecent language to her

daughter and herself, causing great confusion and noise in the neighborhood. That she had requested defendant not to enter the premises, had looked the door and entrance to the house, but that he frequen tly had jumped the gate maíz surrounding the house, forcing an entrance into the house, eontrayy to plaintiff’s wishes; trespassing upon the premises and preventing plaintiff, by annpOying her boarders from earning a livelihood. That unless defendant is enjoined and restrained from interfering with plaintiff's enjoyment of the premises, whioh she had leased and in whioh premises she resided with her daughter and her grand-ohildren, and preventing defendant from committing aots of violenoe, whioh were nuisanoes to the neighborhood and whioh preventod her from making her living by keeping boarders on the premises.

Therefore, she finally prayed that a writ of injunction issue, restraining defendant from in any way interfering with her peaceful enjoyment of the premises, or in any way or manner molesting her or the oooupants of her home, and that the Injun otion so issued he made perpetual, and for all costs and general relief.

Defendant filed a rule through Counsel to dissolve the injunction on various grounds;

1st. That the recitals of the petition are false and untrue.

4nd. That the same disclose no sause or right of action.

3rd. That at the time said copy of preliminary injunction and petition was served upon him, he was lying in bed at his residence, and that plaintiff, his mother-in law who resided with him, his wife and two children, for the past five years continuously and uniterrupedly and was supported, maintained and provided for by defendant, mover. That he is a telegraph operator by profession, has been working steadily for the Western Union Telegraph Compnay, earning a good salary, and that his earnings provided for his mother-in-law, wife and children. That the residence in question was not leased by plaintiff, but by movers wife aoting in his behalf; that present suit is an attempt on the part of said mother-in-law to eject and restrain! him from entering hie own home, and visiting his own wife and ohildren.

That no proceedings have been brought by either mover or his wife, looking towards a diroroe, and mover avers, that without just oause, reason or exeuse, his wife has constantly attempted to make him leave the matrimonial domioile. notwithstanding that hs is and always has been a kind and dutiful and lovi, ,g husband. That he declined to leave his sail home, that his mother-in-law, plaintiff herein, is merely used as an instrument or pupet to oust him from entering his own home whioh was maintained by him, through his toil and untireing efforts, he advancing from $150. to $175. , each and every month for the support of said household, including the support of his mother-in-law; that therefore, the injunction should be dissolved as same would areateo extreme hardship and injustice to him, defendant. Subsequently defendant filed an answer in whioh he virtually avers the same grounds as he did in the rule to dissolve, and claiming that the aotion of plaintiff in securing said injunction is wrongful and contrary to law, and an invasion of defendant's legal rights, and because of said wrongful aotion defendant is entitled to recover as compensation the sum of $5.000. from plaintiff, together with a reasonable sum as Attorney's fees, and that the injunction prayed for by plaintiff be dismissed, the injunction proceedings set aside and judgment in reoonventlon for the amount prayed for..

The rule to dissolve and the merits were tried together, and testimony whioh would be useless and serve no good purpose by injeoting same into this record, was was taken pro and con, and finally after due hearing and argument by respective Counsel, and full and care -ful consideration of this cause, the trial Judge save written reasons, whioh we adopt for judgment in this cause, as follows, to-witj-

By Cage. Judes.
* This is a oase, fibe years ago, the defen dant, Dawson, leased this house from the owner, signing a written lease and twelve rent notes. The evidence ehows that from that date the owner of the property has never had any cause for eomplaint against her tenant; it shows that the defendant was a telegraph operator, liable, because of his occupation to be chan ged about by the telegraph system for which he worked, from place to place. The evidence satisfied me that the subsequent leases of the premises from year to year on each expiration, were signed by the wife as the agent of the husband. There was no situation which arose which permitted her to acquire that lease for her separate benefit, with her seperate and paxsfaxMl mauy paraphernal money. The testimony does not bear this out at all. The fatal flaw in the plaintiff's case is if her statement and her mother's statement that the.leases for the past four years were made by the wife as agent for her mother, is a fact, that when the differences between the wife and her jg husband became acute, it became necessary to destroy the lease made in accordance with the ouetom of several years — >a lease signed by the owner and the defendant's wife, and substitute therefor a lease signed by Mrs, Moore, the plaintiff. If the lease then outstanding was the lease of Mrs. Moore, executed through her agent, Mrs. Dawson, there was no nesdssity on the face of the earth to destroy this lease, and if, on the contrary, it was the lease of the husband, the head and master of the community, executed by the wife for the community, then Mrs, Fabaoher had no right on earth to cancel and annul that laas« and five a lease to somebody aleo.
I aa fully Impressed that the lease was the lease of the sommdnlty of aoqusta and sains exlstins between Dawson and hie wife, and belongs to him as the headiad head and master of the community, and that Mrs. Moore, the plaintiff in this case, is not the tenant of the house. The tenant holds a MUM tenure under the lease, and that being a fast. Id she was not satisfied with the eondust of Dawson in this house. It was not her right or province to enjoin him from going to his own house; it was her right and preyel-sge to get out. I oonslder that this Is an lnjunotion by the wife in disguise. It appears to me that the real plaintiff in lnjunotion is the wife, and that ths mother Is used only tas a figurehead. I think the lnjunetlon was wrongfully issued and it will be dissolved. I believe that Mrs. Moore is merely a shadow or simulas rum for her daughter, and that whatever Injury or damage has oome to Dawson from the Issuance of the lnjunotion was assisted by his wife, in my opinion.
There will be judgment (dissolving and setting aside the lnjunotion with oosts. As the defendant has proven no damages whatever, I will dismiss his reoonventlonal demand for damages as In oase of non-suit11.

For ths reasons herein assigned, It is ordered, adjudged and deoreed, that ths judgment of the lower Court is affirmed with oosts against plaintiff In both Courts.

-Judgment Affirmed*  