Howell v. Sheriff of East Feliciana 27 La. 701

Morgan, J.

This is an injunction suit, instituted against the sheriff to restrain him from executing a writ which issued in the case of Riley v. Howell.

In that case (Riley v. Howell) we annulled the judgment on the ground of want of jurisdiction of the court which rendered it. If the judgment was a nullity, no execution could rightfully issue under it. The judgment of the district court, therefore, which maintained the injunction, is correct.

Judgment affirmed.

On Rehearing.

Wxlx, J.

It now appearing that the court which rendered the judgments sought to be executed was not without jurisdiction, the merits of this injunction suit will have to be examined.

Plaintiff enjoined the seizure by defendants of an iron box and its contents, consisting of money, parish warrants, etc., on the ground that they were not his individual property and therefore not liable to seizure by his creditors; that they were in his custody and possession in his representative capacity of tax collector of the parish of East Feliciana, and that he had an interest in seeing that the property seized was faithfully applied to the purpose for which he had given bond.

*702In support of the position plaintiff sought to prove by himself and James A. Sullivan that the money, warrants, and other property seized belonged to the State or the parish. Defendants excepted to the evidence on the ground that in a recent controversy between plaintiff and one De -Gray, who succeeded him as tax collector, plaintiff had judicially admitted that he was the owner of the property now under seizure, and the witness Sullivan in that case had testified that this property was the private property of plaintiff.

We think the bill of exceptions of defendants to the introduction of this evidence was well taken. Plaintiff can not now be heard to contradict the allegations of his petition in regard to the ownership of this property which he made in the controversy with De Gray; nor can the witness Sullivan be heard now to contradict the testimony which he then gave.

It is therefore ordered that the injunction herein b"e dissolved, with costs and one hundred dollars’ damages.

Mr. Justice Howell was recused in this case.