
    Court of Appeal - - Parish of Orleans
    No. 7818
    Mrs. Annie Frey v s Thomas J. McDonald
    By Dlnkelapiel. J.
   By Dlnhelsplel. J.

This controversy was instituted by Mrs. Annie Frey, * femme «ole, against Thomas J. MoDonald, from whom she claims the sum of $1,000.00 as damages alleged to have been suffered by her- through a-wrongful issuance of a writ of provisional seizure, under which writ certain household furniture enumerated in her petition, the pro-' pert/efpladntiff, had been seized and held by the Mil until final judgment of said suit above referred to, and which suit was eventually decided in favor of plaintiff as is shown by reference to the record of the Firet City Court, being Ho. 78554 of the docket of that Court, and which record is made part of the record in this case.

Defendant filed exceptions of vagueness and no cause of notion to these proceedings, which being overruled by the judge a quo, he thereafter filed his answer in which he denies being indebted to Mrs. Frey, and specially denies. that her furniture had been unjustly or illegally seized, but on the contrary same was seized for probable and just oauee. v. V

Further answering, defendant qMwgMKSlMEMMMgn' a number of allegations, which in the opinion of the judge a quo could only have been pleads* in the original suit, and that suit having been decided adversely to defendant, and he taking no appeal from that^sxii^udgment, therefore the MMMMwr could not again be MMmA in this proceeding, and under the ruling all evidence offered by the defendant in order to maintain these allegations as contained in his answer, which would have resulted practically in a retrial of the iseuee of the original suit, were ruled out and disallowed, and a judgment for $50,00 .was rendered u for actual damages in plaintiff‘s favor,

From this judgment! defendant hae appealed, and in her answer to the appieal plaintiff asks that same he increased to the sum of $500.00.

In our opinion the bnly question involved in this case, outside as to the amount of damages allovred plaintiff by the district jijdge, is whether or not. he was correct in his rulings in excluding defendant's proof, in connection aa to what took place at the time of the original suit, under which the seizure was made of plaintiff's furniture, on the grounds that suit was res adju-dicata, and no evidence of the character sought to he introduced by defendant oould therefore he heard in this proceeding, the sole issue involved, being whether or not plaintiff is entitled to any damages for the wrongful seizure, and if so, how much.

Thie question has been passed upon frequentiy by our Supreme Court, and in XXs a oase very similar to this the Court held, "The judgment of the court dissolving is a writ of provisional seizure >&* final and conclusive as to the illegality of ite issuance." Ivers vs. Ryan, 43 Ann. 33.

The decision in the rent 3uit, dismissing the aotion and dissolving the writ, le conclusive on the question that the latter was wrongfully issued. The judgment is r-ee adjudicate on that subject. Cretin vs. Levy, 37 Ann. 183; Ross vs. Goodman, 36 Ann. 133; Barrimore vs. McFeeley, 32 Ann. 1182.

On the question of damages oounsel for defendant, in argument and in brief filed, referred to a number of authorities which are to the effect that, allegation in the petition for damages being suffered by plaintiff due ■to the wrongful seizure of property, are merely conclusions of law, and unlee3 substantiated by proof, must fail. In our opinion that proof was made by plaintiff and sustained by her, an shown by the record of the original proceedings in the First City Court, which record is made part of thi9 suit.

In so far as the amount of damages suffered by plaintiff 5 s concerned, the Judge a quo allov/ed the sum cf #50.00, which,in view <5f the authorities above referred to, said amount of damages are actual expenses and loss realized from the seizure itself, we believe to be reasonable. 42 Ann. 33; 37 Ann. 183.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the District Court be and is hereby affirmed. Defendant to pay costs of both courts.

Judgment affirmed.  