No. 9274 | La. | Mar 15, 1885
The opinion of the Court was delivered by ■
This is an action to recover possession of an improved lot on First street in this city, from whicli the plaintiff was ejected on November 2, 1878 by the defendant. The suit was instituted within a year, viz on October 22, 1879, and therefore the prescription pleaded does not bar it.
The petition alleges that she is the owner of the property and had been in possession as owner quietly and without interruption for more than a year previous to her eviction, and prays tliat she have judg
An exception was made that the amended petition changed the nature of the original demand, hut we can scarcely think it is seriously ■urged although it appears in the defendant’s brief.
The case went off below on a ruling of the court that the allegations ■of the plaintiff virtually made the action petitory, and therefore permitted the defendant to offer evidence of title. The plaintiff appealed.
The allegations and prayer of the petition alike demonstrate the .action to be possessory. We so regarded it when it was here before ■and so denominated it. Huyghe v. Brinkman, 34 Ann. 1179. The amended petition merely reiteiated the allegations of the original and added a claim for damages.
The defendant insists that the distinct and independent allegation in the original petition “ that she is the owner of the property, totally ■disconnected with any averments with reference to its possession,” ■stamp the action as petitory.
It was necessary that she should allege to possess as owner or was in some other capacity entitled to possession. Preston v. Zabrisky, 2 La. 226" court="La." date_filed="1831-02-15" href="https://app.midpage.ai/document/preston-v-zabrisky-7157432?utm_source=webapp" opinion_id="7157432">2 La. 226. The prayer is alone for the restoration of possession, and that fixes the nature and kind of the action. The pleading's and issue ■are a reproduction of Kemper v. Hulick, 16 La. 44" court="La." date_filed="1840-09-15" href="https://app.midpage.ai/document/kempers-heirs-v-hulick-7160326?utm_source=webapp" opinion_id="7160326">16 La. 44. The judge erred.
The proof of rental value is thirty dollars a month for which the plaintiff prays judgment. The defendant urges that he is entitled to ■reimbursement of taxes, necessary repairs, etc. in the event that we should reverse the ruling touching the kind of action, and did not offer any proof of them because under that ruling it became unnecessary. He alleges that he was a possessor in good faith, and asks the case be remanded to receive such proof.
We do not determine here the question of his possession in good faith, but it is fair that he should have an opportunity to shew it and the cost of taxes and whatever else ho can properly plead in offset to the plaintiff’s claim for rent.
It is.therefore ordered and decreed that the judgment of the lower ■court is reversed, and that the plaintiff now have judgment for the
Rehearing refused.