Locascio v. BarberLocascio v. Barber
*1 ' LOCASCIO v. BARBER 595 703) (87 South. judgment plaintiff. 438, for the 193 Ala. 69 (6 743.) 549; Cye. BARBER. LOCASCIO v. Div. South. 24 1165. 1, (Court Appeals June 1920. of of Alabama. SAMFORD, occupied The J. defendant Rehearing 9, 1920.) Denied Nov. premises the under the contract of rental February, then, until some time in and with- &wkey;>195(l) 1. Landlord and Tenant —Ten- Liability out part notice to his landlord or fault on the ant’s Rent after Abandon- for by Entry. landlord, of the moved out and abandoned ment not Affected Landlord’s property, leaving by property the it Where has been abandoned the vacant and uncared may prem- for, tenant, upon by the the enter and landlord was not seen the landlord for caring purpose ises for them and year. the of for Upon being more than a informed of preventing trespass depreciation, with- or other property, the condition of the and that it liability affecting future so out the for tenant’s open, was left and all'of the effects of de- rent, in do- since action of the the landlord gone, fendant and that the defendant had right ing does not interfere with the tenant’s keys, left no up the landlord fastened the but, premises; action of the the to use where May house 1st, and left it vacant until when eviction, is such as to the landlord to amount he rented it to another tenant aat reduced determines, the the and lia- contract of rental rent for put the balance of the bility term and the ceases. for rent possession. new tenant in This he did with- <&wkey;110(2) 2. and Tenant Landlord —Land- consulting out seeing defendant or him. The Entry Premises Abandoned lord’s on year, contract was for one but called for Merely Termi- did not Them to Preserve monthly payments each, advance, of $20 in Tenancy. nate paid and all of February these were to 1st. premises, act the tenant abandoned Where plaintiff [1-3] It is true the testified that house, closing up to in the it for so as of the landlord when he found that rent, the defendant had preserve aban not did it to advertise and provi- premises notwithstanding tenancy, doned the possession,” he the “took terminate entitling re-enter the landlord to a sion of lease but this was conclusion. The facts testi premises pay lease on lessee’s failure to to, and annul did, fied as to what up he were to close of lease. of condition other rent violation or the preserve house in such manner as to it and property advertise it for rent. Where <&wkey;195(2) Tenant 3. Landlord and —Land- Re-renting by by tenant, has been a Premis- abandoned Abandoned the landlord lord may upon premises Tenant. enter purpose the es Evicted Former for the by caring renting Landlord, premises of or by preventing trespass abandoned for them and expiration par- prior to third of lease depreciation, to tenant other affecting without the ty, and such tenant absolved former the liability evicted tenant’s for future rent. 16 R. C. L. rent, though liability for future from tenant p. 970, 482, § note 8. This in' no wise inter by paid a lesser tenant was the new rent Where, right feres with the tenant’s to use. had con- tenant the former than that amount however, the landlord such takes action as pay. to tracted that eviction, it amounts to an the contract of liability rental is determined and the for Court, Appeal Coun- Jefferson Circuit from rent ceases. Ames, Schuisler & Donnell v. Judge. Green, ty ; Dan A. 73, 168; 16 Ala. 9 Ala. Howell, 50 Am. Dec. Roll v. App. against 171, by F. Loc- P. Barber 62 Arlie South. 463. Action Under the case, in Judgment plaintiff, facts place and defend- this for the eviction ascio. took on May 1st, appeals. plaintiff Affirmed. after which time ant was not denied, entitled to defendant, South. 704. recover rent 87 from Certiorari al- though the rent was for a lesser amount McCary, Vaughan Smith and & William than the contract called for. appellant. Birmingham, for all of undisputed facis, Under the plaintiff the judgment is judgment rendering entitled to a the for for the Court erred in rent due February 70; App. 71, Ala, 1st, 1st, plaintiff. April 1, 1915, 64 March. 9 Ala. 65 and month, Taylor’s per 158; 291; at $20 thereon, plus 1 & with South. T. 2 interest § L. attorney’s fee, & T. proven Wood’s L. 1174. a reasonable which is to be This would amount $25. $115.40 to at Barber, Graham and Perdue Arlie both judgment the trial. date of The rendered Birmingham, appellee. of for only $85, in the court lower is of which the and as to the complain, plaintiff retaking does not There was no in such a sense as injury. deprive it error without defendant is to the landlord of his rent between record, May in is no reversible error the the abandonment There and 1st. 68 Miss. . judgment 895, 664, 598, is affirmed. and the 9 South. 13 L. R. A. 24 Am. Affirmed. 294; Rep. 421, 807, 184 111. St. 56 N. E. 181; Rep. 464, 75 Am. St. 967, .89 Cal. 26 Pac. Rehearing. On Rep. 488; 566, 23 Am. St. 22 Or. 30 430, Rep. 625; by urged appellant Pac. 29 Am. St. 101 counsel S. W. It is for that 269; properly given E. 25 S. 713. Court not this court has consideration to rendered <&wkey;For topic Digests Key-Numbered other cases see same and in KEY-NUMBER all and Indexes *2 APPELLATE ALABAMA REPORTS 17
596 whereby it alleged lease to a in the written that clause recover balance be to due on the shipment provided: Judgment of a car of Is lumber. of plaintiff appeals. and nonsuit Affirmed. pay as the rents to the lessee fail “Should any aforesaid, they or violate as due become Mitchell, Livingston, ap- James A. of for le^ise, lessor shall this the of other condition pellant. option right to re-enter at his the then have premises this lease.” and annul the Counsel discusses the action of the court ruling in its on demurrer with citation of pass necessary to for court the It not was authority, but does not discuss matters -the the in under upon the contract that clause opinion. treated in the being presented, no evidence facts as there option lessor .exercised the the that to show Seale, Livingston, appel- E. Thomas of for annul the same. Whether the to lease under lee. by the after abandonment the entered lessor appeal The is not taken within six months lease, independent or lessee, whether the of ruling 1915, from the on demurrers. Acts by the entered, of of exercise reason the he p. appeal taken, nothing 711. Under the as That option moment. of no in the lease is 499; but that can be considered. 21 Ala. May place entry fixes 1st on took the actual 117, 397; 3017, Ala. 167 52 South. .section parties rights in this of the and the liabilities suit, Code 1907. by the evi- fact is established this and dence, of this court. to satisfaction the MERRITT, judge’s J. The made entries Application overruled. on the trial in docket show this cause that 1919, 9, complaint on June sustained, continued,” “Demurrers to 20, and on October granted nonsuit, 1919-,“Plaintiff with bill a 24) (88 South. exceptions.” of ALLISON LUM- CO. v. PENNSYLVANIA R. entry appears the The as from rec- minute 216.) (2 Div. BER CO. ord recites: 9, 1920.) (Court Appeals of Alabama. Nov. of day 20, being “October This the set 1919. Appeal plaintiff cause, Appeal for the trial this came the <&wkey;8G6(l) of and Error 1. —On Rulings by attorney its that a be and asks nonsuit Adverse Earlier Nonsuit from cause, exceptions. in taken this with It bill of NONSUIT UNLESS CANNOT REVIEWED, BE by court, is therefore and it is considered the Consequence Thereof. in was court, judgment a the of that order and the plaintiff 3017, 1907, where § Under Code ex- with of nonsuit taken in this cause bill be ruling a consequence suffers of an adverse in nonsuit and go ceptions, and hence and that the defendant rulings appeals, adverse anterior plaintiff in the cost have and recover of the this behalf they considered, caused the unless be cannot expended.” appears nonsuit; but, to have nonsuit if the express thereof, consequence state- an in been assignments unnecessary. only The of error are directed fact is of that ment ruling to the of court on the the demurrers. &wkey;»494 Appeal In Error and —Record 2. [1] Section 3017 of the Code reads as fol Sustaining De Ap of Snow to sufficient : lows Review on as to Warrant murrers peal so .“If, any Nonsuit. ruling from from or decision of the court recited, cause, upon to pleadings, “Demurrers on the trial of a record the either Where continued,” rejection sustained, “Plaintiff- complaint evidence, upon and admission or of or exceptions,” charges may nonsuit, jury, the become'.necessary of to the it granted with bill a plaintiff facts, or constitute for nonsuit, to show to such as the suffer a not were the recitals overruling ruling sustaining point, may the or or judgment decision be either reserved for a demurrers, on ruling ruling though Supreme consequently, by the the decision of the and Court bill of nonsuit, exceptions by superinduced appeal such or the on the record as in demurrers 1907, 3017, be re- other cases.” § under Code cannot appeal,from nonsuit. the on viewed Having section, under consideration this Appeal Appeal t&wkey;806(l) Error and 3. —On J., Anderson, Engle in the of v. case Patter Rulings prom on Demurrers had Nonsuit al., 117, says: 397, son et Ala. 167 52 South. SlX MONTHSPREVIOUSCANNOT MOBETHAN Reviewed. be “This statute not was intended to a authorize rulings 1915, sustaining p. 711, plaintiff a escape judgment by taking Acts Under a to final complaint nonsuit, perhaps ruling, cannot be the reviewed demurrers to the last and on then judgment nonsuit, appeal of rulings, a where from on review all adverse but was anterior upon appeal six only was taken until months not nonsuit intended to enable the review the a rulings. causing ruling after the the nonsuit” Court, Appeal from Circuit Sumter Coun- —and, further, plaintiff confined to “is the Jones, ty; Judge. I.R. right assign only to error as to rul- the the ing by Pennsylvania superinduced the nonsuit.” This Action the Railroad which Com- upheld against Company, pany in the later the Allison Lumber case has been cases of Digests Key-Numbered and topic other cases see and in all Indexes same I-CBY-NUMBBR ©=»For