
    JOHN D. NIX, JR., versus ALEXANDER MADISON
    NO. 8, 745
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    October 16, 1922.
    
      
    
   BY: WIBDIAM'A. BEIL, JUDGE.

By verdict and judgment rendered, in the trial of this cause in the Civil District Court for the Parish of Orleans the plaintiff, John D. Hix. Jr., now appellant Before this Court, was recognized as entitled to a vendor's lien and special mortgage in the sum of $295 hearing on certain real estate formerly Belonging to the defendant, Alexander Madison, now deceased. This same property at date of and for sometime prior to the above judgment, had passed to Joseph Petrie & Co., ltd. (subsequently in liquidation) By constable's sale in suit #67672, First City Court of Hew Orleans, which suit was Brought By said Company to enforce a lien for labor and material furnished upon the aforesaid property when owned By Madison.

By judgment of this Court in the case of John T. Nix, Jr., v. Joseph Petrie & Co., Ltd., #7900 Orl. App., title in the above property was declared to have passed from Madison to Petrie & Co., Ltd., on April 19, 1915, By virtue of the constable's proces-verbal of that date.

By judgment of this court in the case of John T. Nix, Jr., v. Joseph Petrie & Co., Ltd., #8242 Orl. App., it was definitely decreed that -Petrie & Co.'s title, acquired By the City Court Constable's sale, was subject to and Burdened with Hix's aforementioned superior vendor's lien and mortgage, reduced to judgment on Maroh 9, 1915, in the cause #111,202, Civil Distriot Court for the Parish of Orleans, Being the original suit of John T. Hix, Jr., v. Alexander Madison, the identical case in which the afores-said verdict and judgment now under review were rendered.

By judgment of this Court in the consolidated appeals Hos. 8289 and 8419, the oase now again on appeal was remanded to the District Court for the Parish of Orleans, the judgment of the said lower court Being reversed ana une cause Being remanded for the purpose of compelling the plaintiff and appellee, Hix, to render full and complete, account of the rents and revenues of the property in litigation during the time that Eix had been in posession thereof hy virtue of a sheriff's deed declared in this Court under appeal #7900 to have been null and void, and providing that the taxes and insurance and other expenses incurred hy Eix should he credited to him as against his indebtedness for such rents and revenues, all in accordance with such evidence as might he adduced on the trial to he had for which the case was remanded.

It was further ordered hy this Court that in this new trial the question as to whether Eix's lien Tías superior to Petrie's claim for labor and material should he determined, and it was also further ordered that Eix should he permitted to proceed with his executioh if his claim, on second trial, was found to he superior to that of Petrie's, conditioned upon there being a balance in favor of Eix.

The result of the trial of this cause under the decree remanding same to the District Court, was' that -the jury rendered the aforesaid verdict in favor of Eix, for the sum of $095, dissolving the injunction without damages and without interest on said amount, and recognizing Eix's vendor's lien to he superior to the claim for labor and material asserted hy the ■liquidators of Petrie & Co., ltd., and allowing Hix to proceed with the execution of his claim filed in the said proceeding, via ordinaria.

Prom this judgment Eix has taken the appeal now under consideration, on the ground that the judgment of the jury was insufficient, and that there should have been a balance in favor of Eix in the sum of $562.42, with 8% interest on $299.28 of said amount from January 1, 1922 until paid. The judgment in this matter, which was rendered hy the Court a qua, in support of the verdict of the jury, reads as follows:

"Considering the verdict of the jury, the law and the evidence being in favor of defendant in injunction, John D. Eix, Jr., as rendered herein, it is ordered, adjudged and decreed that there he judgment in favor of defendant in injunction, John D. Eix, Jr., and. against plaintiff in injunction, Joseph Petrie, louis E. Reiser, and John J. Modénbaoh, as liquidators of Joseph Petrie & Company, limited, and Joseph Petrie and Company, recognizing the special mortgage and vendor's lien of John D. Eix, Jr., upon the property herein foreclosed upon to’be $395.00 lThree hundred and ninety five dollars), after giving due credit for all the rents and revenues collected ty him (John D. Eix, Jr.,) from said property and for the disbursements made thereon by him.
It is further ordered, adjudged and decreed that the special mortgage and vendor's lien of John D. Eix, Jr., is superior to the Plumbing claim of Joseph Petrie and Company and Joseph Petrie and Company, limited.
It is further ordered, adjudged and decreed that the injunction herein sued out by the liquidators of Joseph Petrie and Company, limited, be dissolved, without damages against them and their surety.
It is further ordered, adjudged and decreed that all other'costs herein incurred be borne by Joseph Petrie and Company and Joseph Petrie Company, limited.
Judgment read and rendé red in -open Court, Thursday, May 4th, 1922.
Judgment read and signed in open Court, Tuesday, May 16th, 1922."
(Signed) Columbus Reid, Judge.

The appellant herein moved for a new trial, but same was denied by the Court with reasons as follows:

"This ease was a difficult one to submit to a jury, as the issues involved were technical and intricate, questions of law, as well as acoounting, and the jury may not, and could hardly be expected to thoroughly understand the issues. I feel that the balance due on’the mortgage notes of John D. Eix, Jr., should be paid by preference over the judgment of Petrie & Co. The jury has evidently subordinated Eix's' claim to that of Petrie & Co. by deducing the amount of his claim by the amount of Petrie & Company's. However,, the matter oan better be determined by the Court on appeal rather than by submission to another Jury, and the motion for a new trial, will, therefore, be refused."
E.O., la., May 8, 1922.
(Signed) Columbus Reid, Judge...

An examination of ^the exhibits and’ testimony' herein filed is conclusive that the total amount due ,Hlx on;th,e items of expenses such as taxes in the sum of $55.92.and- t«paii|iii in the sum of $150, and of the total mortgage interest, attorney's fees and costs of $728, should he allowed, bringing the total amount due Nix, including 8$ of $299.28 on the principal debt, to the sum of $933.92. Against this amount, the evidence shows that Nix collected rents while in the aotual, but illegal posession. of the property, to the extent of $371.50, whioh amount, when deducted from the above total of $933.92, leaves a balance due Nix on the above items of $562.42. We are of the opinion that the Judgment of the lower Court' should therefore be amended, increasing the allowance to Nix from $395 to $662.42.

On the appeal herein taken, Nix urges here, as he did in the trial of the ease as remanded, that he should also be allowed 20$ damages on $562.42, or the sum of $112.48, for the illegal issuance of the injunction taken out in this pro* seeding by the plaintiff in injunction to Petrie & Co., now in liquidation. This latter claim, in our opinion, is not well founded, for the reason shown by the unusual and protracted litigation in this case, and which establishes a Justification of the injunction proceedings recognized by this Court in the decree rendered on Ootober 31, 1921, in the consolidated cases Nos. 8389 and 8419, Orl. App.

While it is true that the final trial before Jury Justifies the Judgment setting aside the injunction, the original granting of the same was, in our opinion, Justified, and therefore cannot carry with it at this time the statutory damages herein claimed on appeal.

The liquidators of Petrie & Co., ltd., ap-pellees herein, have answered the appeal, and it is contended by them that they are entitled to 5fa interest on rents collected by Mr. Nix, but this must be denied, for the reason that the record discloses that all rents collected during each year were added at the end of the year and deducted from Mr. Nix's claim, thereby reducing his claim by the amount of the rents, and stopping interest whioh would otherwise have been due on said amount of rents.

The further contention of appellees herein that Nix is only entitled to 6$ interest on his claim from the time of the adjudication of the property to Petrie & Co. rather than 8tfo contractual interest under the mortgage, is, in our opinion, not sound in law nor justified hy the facts of this case, and the authority cited in support of said contention - the case of Morris v. Cain, 39 Am. 713 - is not applicable to the facts of this case, Nix's suit under his non-alienation pact via ordinaria being against Madison, his debtor, and not against the original adjudicates, Petrie & Co,

Our exhaustive consideration of the most unusual and protracted litigation which has existed in the several suits involved in this case, running for over five years, and in which no less than five appeals have been taken to this Court, results in our conviction that the verdict and judgment herein appealed from is correct in every respect except as to the insufficient amount for which Nix's vendor's lien has been .recognized. We have already noted above the proper increase which should be given to the monied judgment .in favor of Nix. In all other respects, the judgment should be affirmed.

It Is therefore ordered, adjudged and decreed, that the judgment herein appealed from be, and the same hereby is amended, so as to allow John D. Nix, Jr., plaintiff herein, the sum of $562.42, with &fo interest on $299.£8 of said amount, from January 1, 1922, until paid. It is further ordered, adjudged and decreed that the injunction herein sued out by the liquidators of Joseph Petrie & Co., ltd,, be, and the same hereby is dissolved, without damages against them and their surety. It is further ordered, adjudged and deoreed, that all oosts of this appeal and the costs of the lower court herein incurred, shall be borne in solido by the liquidators of Joseph Petrie & Oo.,ltd., successors of Joseph Petrie & Co.'.and the surety on the injunction bond.

JP1SMENT AMENDED. ANN AS AMENDED. AEPIBMBD.

October 16th, 1922,  