
    Morgan v. Driggs & Al.
    Reconventional demands for damages for the wrongful suing out of an injunction and false imprisonment, cannot be pleaded and set up in a possessory action: they are independent and distinct frvin it and foreign to the cause on which it is based. — 0. P. 874, 375, 376, 877.
    Damages for the wrongful suing out of an injunction, may be claimed in the same suit, under the provisions of the Act of 1831, in cases embraced by it; but from its wording it seems to apply particularly where judgments are enjoined. — 5 L. 87, and cases there noted.
    The verdict should always respond to the issues made by the pleadings, and pass on the principal action, and unless special, it ought, in cases of reconvention, to pronounce upon the respective rights or actions of both parties. — 4 L. 834.
    Appear from the court of the fourth district for the parish of Pointe Ooupée, the judge of the second district presiding.
    This is a possessory action. The plaintiff alleges he is the possessor [177] and owner of a tract of land composed of three distinct claims, viz.: Mc-Lanahan, Enet, and Larue, lying in the parish of Pointe Coupée, and fronting on the Mississippi Kiver; that he has had actual possession thereof for more than two years, and that the defendants, Henry Driggs, A. Butts, R. Richards, and Ward, have forcibly and tortiously and without right entered on said land and taken illegal possession thereof, and committed great waste and damage, by cutting timber and destroying trees growing thereon, to his damage $2,000. He prays for writs of injunction, arrest, &c., against said defendants, and that he have judgment decreeing him the possession thereof as owner with $2,000 in damages, &c.
    The defendants severed in their answers. Driggs pleaded a general denial ; and denies specially that the plaintiff had any right whatever to sue out an injunction, and claims $1,000 in damages for the wrongfully suing out of the same: and further answering, claims $5,000 damages in reconvention for false imprisonment, &c. He prays that the injunction be dissolved, with damages, the suit dismissed, and that he have judgment in reconvention for all of his said damages and costs.
    Ward pleaded the general issue, and averred he had been arrested and imprisoned for more than a month, also prayed judgment dismissing the suit, and in reconvention dissolving the injunction with damages, and for $5,000 as damages for the false imprisonment.
    These pleadings were the principal ones, and formed the substantial issues of the case which were submitted to the jury for trial. After the pleadings were made up the plaintiff’s counsel moved the court to strike out the reconventional demand from the defendants’ answer, which was refused, and a bill of exceptions taken. The instructions given by the judge to the jury were also excepted to by plaintiff.
    [178] The case then proceeded on its merits. The imprisonment of the defendants was fully proved. Evidence and the testimony of witnesses were offered to show the plaintiff’s possession and the extent to which he claimed. Upon the whole evidence of the case, the jury found as follows: “Yerdict in favor of the defendant, II. Driggs, for false imprisonment, $1,200, and for the wrongful issuing of the injunction, $500; verdict for the defendant, Ward, $500.
    After an unsuccessful effort to obtain a new trial on the ground of newly discovered evidence, and that the verdict was contrary to law, from the judgment confirming it, the plaintiff appealed.
    
      Ilsley, Nicholls and Stevens, for the plaintiff.
    1. That the court below erred by not striking out the defendant’s pleo in reconvention, on the ground that they were not necessarily connected with, or incidental to the cause of action set forth in plaintiff's petition. Code of Practice, arts. 153, 154, 374, 375, 376, 377; Keene v. Pelf, 11 La. Rep. 304; 13 Id. 66.
    2. The court erred by instructing the jury that the plaintiff must have been in the real and actual possession of the land at the instant the acts complained of took plaee, because such instruction was contrary to law and well calculated to mislead the jury, giving them to understand that it was indispensably necessary for the plaintiff in person or by his agent to be actually on the la/nd at that time. Bilis v. Prevost, 13 La. Rep.
    3. That the court-erred by refusing to instruct the jury that if they should be of the opinion that the plaintiff had not established his claim for possession, yet if he had shown a better right to the land and the damages than the defendants, ho would still be entitled to a verdict for the damages. See 6 La. Rep. 559, in which plaintiff recovered damages for trespasses without establishing title or possession.
    
    [179] 4. That the court erred by instructing the jury that in assessing the damages for the defendants, they were not to be confined to the pecuniary loss actually suffered by the defendants, for it was impossible to prove in dollars and cents the damages suffered. Such instruction was illegal, because it would, and did, cause the jury to .give vindictive damages.
    5. There is no direct evidence of the amount of damages suffered by the defendants for the imprisonment, the only evidence being that they were imprisoned, from which the jury inferred the amount of damages, thereby acting as witnesses without the plaintiff having an opportunity of cross-examining them.
    6. The damages are exorbitant and excessive. There is no evidence showing that the plaintiff acted from improper motives, hut on the contrary, that he only was endeavoring to secure in the mode prescribed by law, what-he verily believed to belong to him. 4 La. Rep. 46 ; 7 Id. 579 ; 13 Id. 90. '
    7. Hew. evidence was discovered after the trial, and the necessary steps were duly taken to obtain a new trial, the same was therefore illegally refused. Code of Practice, art. 560.
    8. The verdict of the jury is illegal, null and void, because the demand of the plaintiff does not appear to have been acted upon by the jury, and because it does hot appear whether the verdict in favor of Ward is for the imprisonment or the injunction.
    
      Thomas and Preston for the defendants.
    1. The verdict of the jury is not injurious to the plaintiff, it being in accordance with the law and evidence of the case.
    2. The plaintiff claims, under a sale from Joseph Enet, but an examination of the testimony will show that the defendants were not on the Enet'tract, admitting it to belong to plaintiff.
    3. The injunction,'arrest and sequestration obtained by plaintiff were clearly unjust, defendants having been in peaceable possession for more than a year prior to the institution of this suit. Code of Practice, 49.
    4. Admitting that tide can be introduced in a.possessory action, the [180] one sought to be adduced by plaintiff on the trial of this cause does not agree with the allegations contained in his petition.
    5. The plea in reconvention was correctly sustained by the court a guo. The demand of the defendants for damages, was a consequence of the transaction of the plaintiff in this suit, and growing out of the same transaction, they have a legal right to recover. Code of Practice, 375 ; 6 U. S. 671; 8 H. S. 149 -, 10 La. Hep. 183.
   Sijiojt, J.

delivered the opinion of the court.

This is a possessory action which presents the same features as the one decided upon by this court iu the case of Morgan v. Driggs et al., reported in 15 La. Rep. 451. Indeed it is founded on the same facts, presented on the same kind of alleged possession, and is between the same parties, except that the plaintiff thought proper to make other persons parties defendants with those whom he had previously sued in the former action. He alleges himself to be the owner and possessor of a tract of land which he describes, composed of the McLanahan, Enet and Larue claims, the boundaries of which are described in a plat of survey which he intends to produce; that the defendants have repeatedly committed divers illegal and tortious acts, on the said tract of land, to his prejudice, by cutting down and destroying the trees, &c.; from which he has sustained damages to the amount of $2000 ; he prays that said defendants be arrested and held to bail; that a writ of injunction issue commanding them to desist from their said tortious and illegal acts, and to quit and leave the land; that judgment be rendered in his favor for $2000 damages; that defendants be ordered to abandon the land, that the possession thereof be restored to him, said plaintiff; and that he' be put in-possession of the same accordingly. A few days afterwards plaintiff filed a supplemental petion, in which he prayed for a writ of sequestration [181] to issue, for the purpose of sequestering the tract of land in dispute, with all its appurtenances, rents and profits, wood and timber thereon being, &c., &c. ; which order was granted. The three several writs of injunction, arrest and sequestration, were regularly issued and duly executed; the defendant, Driggs, after having been imprisoned for a few days under the writ of arrest, furnished his bail; and the defendant, Ward, after having also been imprisoned for a longer time, was released. The two other defendants not having been found, no citation was servod upon them.

The defendants, Driggs and Ward, severed in their defence ;• pleaded the general issue, and respectively reconvened the plaintiff’s demand by a claim for damages to the amount of $1000, as resulting from the wrongful suing out of the injunction, and to the amount of $5000, from the imprisonment to which they had been subjected under the writ of arrest, alleged to have illegally issued. The jury found a verdict in favor of Driggs for false imprisonment, twelve hundred dollars; for the wrongful suing out of the injunction, five hundred dollars; and in favor of Ward generally for five hundred dollars; and after an unsuccessful attempt to obtain a new trial, the plaintiff appealed.

The first question which we are called upon to notice, arises out of a hill of exceptions taken to the opinion of the court overruling the motion made by plaintiff’s counsel to strike out tho defendants’ pleas in- reconvention, on the ground that they are not so connected with the cause of action set forth in plaintiff’s petition as to be made the grounds of reconventional demands. We think the district judge erred: the claims set up in reconvention by the defendants cannot be said to be necessarily connected with and incidental to the cause of action set forth in plaintiff’s petition; they do not grow out of the transactions which afford the grounds and basis of the action, but are [182] merely the consequences of the proceedings which he resorted to to-enforce his legal rights, and result from the conservatory measures which he thought proper and necessary to take to secure the exercise of his said rights. They are, in their nature, independent and distinct from the possessory action brought by the plaintiff, and are entirely foreign to the cause on which it is based. Code of Practice, arts. 374, 375, 376 and 377; 6 N. S. 671; 7 N. S. 517; 10 La. Rep. 183.

In the case of Abat v. Holmes, 8 Mart. N. S. 145, the defendant was permitted to reconvene the plaintiff in damages for a wrongful imprisonment, because as the action was for a forced surrender in consequence of the imprisonment, there was such a close connection between their demands that they could both be considered as springing from the same cause.

In the case of Keene v. Relf, 11 La. Rep. 309, in which the reconventional plea was for abusive words or slanderous epithets uttered in setting out the cause of action, this court would have felt no hesitation in rejecting said plea, had not the plaintiff joined issue with the defendant, on the matters alleged in the reconvention; but in the mean time the court said: “ that the damages claimed by one party were distinct and unconnected with the damages claimed by the other;” which is exactly the situation of the claims for damages set up in this suit by the parties against each other.

In the case of Kemp v. Amacker, 13 La. Rep. 65, this court decided that an action of slander for damages could not be reconvened for slanderous words alleged to have been uttex’ed by the plaintiff against the defendant, as the reconventional demand was not necessarily connected with and incidental to the principal one. So it is in the present case, and we do not hesitate to say that the reconventional demands set np by defendants against the plaintiff’s action, were improperly maintained, and that they ought to have been stricken out of their answers. The defendants are therefore left to their remedy by a principal action.

We must not, however, be understood as deciding this question, [183] with regard to the damages claimed for the wrongful suing out of the injunction, in derogation of the law of 1831, which allows to a defendant in injunction, the right of claiming in the same suit ten per cent, interest and twenty per cent, damages on the amount of the judgment enjoined, and more if he can prove them: this law provides for a different class of injunctions, and, from its wording, seems to apply particularly to cases in which judgments are enjoined. In this case there would be no criterion upon which interest and damages could be claimed or allowed under the law of 1831, and the defendants’ demand being merely one set up in reconvention, does not come within the provisions of said law.

Having thus disposed of the point arising from the reconventional demands set up by defendants, the case is now reduced to the merits of the possessory action ; and this renders it unnecessary to examine the various questions raised by the parties in relation to the charge of the court to the jury on the proper rule to fix the quantum of damages to be allowed; to the sufficiency of the evidence in support of the same; to the excessiveness complained of; and to the new trial applied for on the ground of newly discovered evidence; but we cannot forbear noticing the course which was pursued by the jury in finding their verdict, and by the lower court in rendering judgment thereon. The plaintiff’s action appears to have been entirely disregarded both by the jury and by the court, and was not in any manner acted upon by either, in the verdict or in the judgment. This is clearly illegal and irregular, as the jury could not render a verdict in favor of the defendants on their reconventional plea, before having disposed "of the principal action for or against the plaintiff, unless they thought proper to give a special verdict, which was not the case here. Oode of Practice, arts. 519, 520, 521, 522, and following. And had we not come, to the conclusion that the defendants’ claims for damages could not be pleaded in this suit as reconventional'. demands, which opinion puts an end to this part of the case, this irregularity in the proceedings would have been sufficient in itself, however well [184]] founded the verdict of the jury might have been on the defendants’ pretensions, to remand the cause for a new trial. The verdict of a jury should always respond to the issues made by the pleadings, and unless special, it should always, in cases of reconvention, pronounce upon the respective rights or actions of both parties.

On the merits, we do not think that justice requires this case should be remanded for a new trial. Although from the prayer for damages contained in plaintiff’s petition, it appears to be in the nature of an action for trespass, it is virtually a possessory action, which, as we have already said, presents ex? actly the same cause of action as reported in 15 La. Reports, 471, and is between the same parties. The former suit was instituted on the 19th of Oo* tober, 1837, and tlie present one was brought on tbe 12tb of March, 1838, and far from the plaintiff’s having shown himself to be in a better condition now, in relation to bis alleged right of possession, and from having proved his said possession to be of the nature required by the article 49 of the Code of Practice, defendants had acquired a still further adverse possession which must necessarily strengthen their defence. • The evidence, which is mostly the same taken from the former case, does not show any thing more definite; the plat of survey found in the record is rather unsatisfactory, the Larue claim is clearly shown to be below the Enet tract; and a witness states explicitly that the defendants are not on the McLanahan claim; it is also to be remarked that the location of the part of the Enet claim under which the locus in quo is pretended to be covered, is left as doubtful as it was on the last trial, and is not shown to extend to the defendants’ -premises, and there is no proof that the plaintiff ever was in possession of the two other claims, which no legal evidence has been adduced to show the extent and limits of, to interfere with the defendants’ possession. 15 La. Reports, 556.

[185] On the whole, we cannot perceive any material difference between the facts of possession proven in this cause, and those shown on the formei occasion; and as the plaintiff, having had repeated opportunities of establishing his demand, appears to have exhausted to no purpose all the legal means which he had of proving the allegations set forth in his two different possessory actions, an end must be brought to this litigation; and there is, in our opinion, no necessity for sending the case back for a new trial.

It is therefore ordered, adjudged and decreed, that the judgment of the district court bo annulled, avoided and reversed; that the reconventional pleas filed by defendants be set aside, reserving to the said defendants the right of instituting a principal action, and that the plaintiff’s petition be dismissed; the costs of the lower court being paid by the plaintiff and appellant, and those in this court to be borne by the defendants and appellees.  