Cotten v. Christen

Citations

• 110 La. 444
• 34 So. 597
• 1903 La. LEXIS 652

Syllabus

<p>.APPEALABLE ORDER — DISSOLUTION OP INJUNCTION — TRESPASS—BOND.</p> <p>On Motion to Dismiss Appeal.</p> <p>1. It being unnecessary to determine whether the judgment dissolving the injunction sued out in the case is interlocutory in character or not, no decision on that point is made, but it is held that a judgment dissolving an injunction taken against acts of trespass on real property, even if interlocutory in character, is appealable. In contemplation of law the injury is irreparable.</p> <p>2. An owner of an undivided half interest in timber lands has no right to cut the timber on the land without the consent of his co-owner, and if he attempt to do so, may be stopped by injunction, for the act is in the nature of a trespass, and such injunction is not. one that may be dissolved on bond.</p> <p>3. Nor is this affected by the fact that in his petition for injunction the claimant part owner may, assert the land and the timber thereon to be of - such value — naming the amount. An allegation of value was necessary to determine the proper jurisdiction on appeal.</p> <p>On the Merits.</p> <p>4. Unless the defect in proceedings for injunction be radical (as for instance where the judge failed to fix any amount for the injunction bond) an injunction will not be dissolved if it appear from the record there exists good cause for-injunction. This is a well-settled rule.</p> <p>5. Where an injunction bond is made payable to the clerk of court instead of to the defendant in injunction, and a motion is made to dissolve on this ground, the trial court, satisfied that plaintiff would be immediately entitled to another order of injunction, should have regarded the defect in the bond rather as an informality than a radical defect, and made an order for a new bond to be given and new writs of injunction to be served, rather than have dissolved the injunction outright.</p> <p>(Syllabus by the Court.)</p>