
    FISK vs. HART ET AL.
    Basteen Dist.
    
      Jan. 1838.
    APPEAL FROM THE COURT OF THE FOURTn JUDICIAL DISTRICT, FOR THE PARISH OF IBERVÍLLE, THE JUDGE THEREOF PRESIDING.
    On a motion to dissolve an injunction on its face, the facts stated in the petition are to be taken as true.
    Where a suspensive'appeal is taken and dismissed, its effect is gone. The second appeal taken within the year does not suspend the operations of the judgment appealed from. Such suspension can only follow air appeal taken within ten days after notification of judgment.
    Damages will not be awarded if an injunction be wrongfully sued out as to a part of thé demand, and sustained as to a part. In case of partial success, the plaintiff in injunction should not be visited with the same penalty as if he had been wholly in the wrong.
    This is a case of injunction. Martha Hart obtained judgment against A. Fisk, for six thousand eight hundred and ninety-four dollars, with interest and mortgage on a plantation and slaves, then in his possession. Fisk took a suspensive appeal to the Supreme Court, and gave bond and security in the sum of twenty thousand dollars. At the February term, 1837, of the court, the appeal was dismissed for irregularity in the order of appeal. See 10 Louisiana Reports, 184.
    A second appeal was taken by Fisk, but in the mean time, after the dismissal of the first one, Mrs. Hart took out an execution, and caused to be seized the plantation and slaves mentioned in the judgment and mortgage, together wjth six other slaves, not included therein.
    Fisk applied for, and obtained the present injunction, enjoining and restricting Mrs. Hart and the sheriff from proceeding with the sale of the property seized, until a final determination of the appeal; and he prays that they be condemned to pay five hundred dollars in damages, and all costs.
    The defendant in injunction, by her counsel, moved to dissolve it, on the ground that there was no legal ground stated in the petition to entitle the petitioner to an injunction.
    The defendant prays also that the injunction be dissolved, as wrongfully sued out, and that the principal and surety therein be adjudged to pay twenty per cent, damages on the amount of the judgment, (principal and interest) and five hundred dollars, special damages for attorneys’ fees, etc., together with such interest as the law allows.
    The district judge perpetuated the injunction for the six slaves seized, and not mentioned in the judgment on which the execution issued, and dissolved it as to the remainder, with ten per cent, damages, on the amount of the judgment, and two hundred dollars special damages for expenses of counsel in defending the suit.
    From this judgment the plaintiff in injunction appealed.
    
      Lobdell and Watts, for the plaintiff,
    contended, that no execution should have been issued, as the first appeal was a suspensive one, and bond given for the full amount required by law, which is still valid, and remains in full force until a final or definitive judgment is pronounced in the case. The ■dismissal of the appeal only operated as a non-suit, and not against the right to bring it up again on a second application. All the original rights of the appellant were preserved on the second appeal. Code of Practice, articles 400, 575 to 594, 618, 620, 803, 893, 899, 901, 905, 910 and 911. 1 Martin, JV. S., 165. 4 Ibid. 352.
    2. No damages ought to have been given. The appellant succeeded in having six of the slaves seized, released; and judgment, even on this ground, should have been given in his favor, with costs, and without damages as to any part of the demarid. 2 Martin, N. S. 217, 628. 4 Ibid. 533. 4 Louisiana Reports, 18, 67, 524. . 6 Ibid. 306, 523 and 640. 8 Ibid. 71 and 205.
    
      Stacy and Ives, contra.
    
   Bullard, J.,

delivered the opinion of the court.

The plaintiff is appellant from a judgment, dissolving in part, an injunction sued out by him, and condemning him to pay interest and damages.

The injunction was granted under the following circumstances : Martha Hart having recovered a judgment against the present appellant, by which a plantation and certain slaves were ordered to be sold ; the latter took a suspensive appeal which was afterwards dismissed by the Supreme Court, on the ground, that it was not made returnable at the proper term of the court. See Louisiana Reports, 481. A second appeal was afterwards allowed, which is yet pending-, but the judge refused to take a sufficient, bond to authorize a stay of execution, which accordingly issued on the original judgment notwithstanding the second appeal. The injunction in question, was issued on the allegation of the above facts; and further, that six other slaves not mentioned in the judgment had been seized by the sheriff.

On a motion injunctionVon its face, the facts stated in the petition are to be taken as tiue.

Where a sus-toke^atíd^dis-missed; its effect second6’ appeal taken withm the year does not suspend the ope-judgment ap-Such^a suspension can only follow an appeal taken within ten fieation^of judgment.

On a motion to dissolve the injunction, the judge very properly considering that the facts stated in the petition must j-,e taken as true, and that six slaves, not ordered to be sold, 3 7 ... had been seized under the writ, perpetuated the injunction ag ^ them, and dissolved it as relates to the others, and condemned the plaintiff in the injunction to pay damages, under the statute of 1831.

The appellant has made two points before this court: 1st. That the original bond given in the appeal within ten days after the rendition of the judgment, remained in force until there should be a final or definitive judgment on the appeal, and that its dismissal on technical grounds only, operated as a non-suit, and not against bringing up the appeal on a second application, and that all the original rights of the appellant are secured by the second appeal; and 2d. That no damages ought to have been given, inasmuch as the appellant succeeded in having the injunction perpetuated, as to a part of the slaves seized.

I. Under the first point it has been urged, that the appellant presents a case of strong equity ; that he did all in bis Powe1'to bring his appeal regularly before the appellate court ; that the point of practice settled in his case, was a new oneand that he has a legal right to an appeal, which OUorht not t0 jjg defeated by errors or inadvertencies of others o j without his fault. It is true the party has a right of appeal, which, by a construction lately given to the Code of Practice by this court, has not been lost by the dismissal of his first appeal, on the motion of his adversary. But it is equally rr . 1 . true, that an appeal does not necessarily imply a suspension *be effects of the judgment first rendered. Such suspension can only follow an appeal taken within ten days after notice of judgment, and upon giving bond with surety according to law.

Damages will not be awarded if an injunction be wrongfully sued out as to a part of the demand, and sustained as to a part. In case of partial success, the plaintiff in injunction should not be visited with the same penalty as if lie had been wholly in the wrong.

The equity on the side of the judgment creditor is equally strong. He has a judgment in his favor which he has a legal right to enforce, unless a suspensive appeal be taken in the form, and upon the conditions required by law. We cannot yield our assent to the proposition, that the judgment of this court, dismissing the first appeal, is not final in that case, although the original judgment may be still open to revision upon its merits, on the appeal now pending, but it is certainly not the same appeal; nor would the appellant have been entitled to stay the execution, even if the judge had accepted a new bond for the amount offered, because the ten days had already expired. While we are disposed to give to the right of appeal all the latitude of which it is susceptible under the constitution and laws, we think ourselves bound to require a compliance with the forms and conditions, which, by law, regulate that right.

II. The act of 1831, under which the appellant was adjudged to pay damages and interest, has always received from this court a rigorous construction. It authorizes the court to pronounce judgment in the same case against the principal and surety on the bond, in case the injunction is dissolved. But it makes no provision by graduating the penalty for a case like the present, in which the injunction was partially maintained. By proceeding in an illegal manner to execute the judgment, the defendant rendered the interference of the court proper and just. Where the plaintiff in ordinary cases succeeds as to a part of his demand, he is entitled to costs ; and we can see no good reason why, in a case of injunction, in the event of partial success, he should be visited with the same penalty as if he had been wholly in the wrong, nor can we suppose the legislature so intended.

The judgment of the District Court, is therefore, reversed 5 and ours is, that the injunction be maintained as to the six slaves not named in the judgment, and that it be dissolved as to the balance of the slaves seized, and that the defendant pay the costs of both courts.  