
    Nathaniel Amacker v. Smith, Harris & Co.
    A jury trial will be refused in cases of executory process on an injunction sued out under articles 739 and 740 of the Code of Practice.
    Appeal from the Dist. Court of the Parish of St. Helena, Wilson, J.
    
      P. Pond and E. P. T. G. W. Ellis, for plaintiff and appellant. A. .Addison, McVea & Hunter, and Q-. W. Martin, for defendants.
   Buchanan, J.

This is an injunction against an executory process sued out upon an act importing confession of judgment, against the property hypothecated by said act to secure the payment of a note of the plaintiff in injunction, defendant in the executory process, for seven thousand dollars.

The principal ground alleged in the petition of plaintiff .for injunction, is fraud on the part of the mortgagees; that the mortgage was granted upon promises of indulgence which were fraudulent and deceitful.

More than a year after the filing of the petition for injunction, and after the contestatio litis had been formed thereupon, the plaintiff filed a supplemental petition praying for a jury, and appended thereto his affidavit, that he expected to prove that’ the consideration of the note and mortgage herein had totally failed, and that the said note and mortgage were obtained from plaintiff by fraud and by promises on the part of the defendants in injunction, which they never 'complied with. .

The District Court refused tlie jury trial; considering tliat this was a summary case, within the provisions of articles 739 and 740 of the Code of Practice.

The Court did not err in this ruling.

The injunction is sued out upon a ground sx>ecified in paragiuph six of Art. 739 of the Code of Practice.

The exceiDtion that plaintiff was xu'oceeding via ordinaria for the same cause of action, — which xu’oceeding is x>ending, — does not seem to be well taken. The consolidated suits of Smith, Harris & Co. against the present x>laintiff were based ux>on sundry accounts between the parties. The present action is upon a note. ‘

The judgment of the Court below, upon the facts, seems to have done justice between the parties.

Judgment affirmed, with costs.

VooRBXes, J., absent.  