42 So. 93 | La. | 1906
Statement of the Case.
Relator appeals to the supervisory jurisdiction of this court for the correction of alleged errors in the ruling of the district court, as follows, to wit:
Leopold Lopez, assuming to proceed under the law which authorizes the lessor summarily to eject the lessee for noncompliance with, or upon the termination of, the lease, brought suit in a justice’s court, setting up title to certain real estate and alleging that Gaston Theriot, “pretending to be a lessee of the former owner,” was in possession of the same. He further alleged that the lease, “if any,” had not been recorded, and became void and of no effect as the result of the sale of the property, and, moreover, that his vendor had notified Theriot to surrender possession, which the latter had failed to do. He therefore prayed that said Theriot be ordered to show cause on a day fixed why he should not be summarily ejected. To this demand Theriot excepted that, as no contract of lease was alleged, no cause of action was disclosed, and that, as no such contract existed, and the suit involved the title or possession of real estate, the justice of the peace was without jurisdiction; and, the case having been tried upon the issues as thus presented, the exception to jurisdiction was maintained, and the suit dismissed. Thereupon plaintiff appealed to the district court, where defendant appears to have abandoned his exception as such, and to have filed an answer, denying that he was, or had ever been, lessee of the property, and setting up title thereto; and (quoting from the return of the respondent judge):
“All the witnesses and both parties to the appeal being present and ready for trial, the case was tried de novo, argued, and submitted- Judgment was rendered in favor of Lopez, who had shown that relator was occupying said property by virtue of a lease, and no proof whatsoever having been introduced to contradict any of the proof made by Lopez; the lease and the ownership having been proved beyond doubt. * * * It was shown that relator was the lessee of the party who sold the property to Lopez on March 6, 1906, and that Lopez brought suit immediately afterwards, as relator had failed to pay the rent. * * * It was shown that the lease was $15 a month.”'
It may be added that it was also shown that Lopez was subrogated to all the rights of his vendor.
Opinion.
If plaintiff had alleged, in terms, that defendant had been occupying the premises in question as the lessee of his (plaintiff’s) vendor, that the lease had been violated and terminated by defendant’s failure to pay the rent and by the service'on him of notice to move out, and that he (plaintiff) was subrogated to the rights of the lessor, we apprehend that defendant would have no basis upon which to rest the exceptión of no cause of action; and, as those allegations were supplied by the proof offered (without objection, so far as we are informed) in the district court, we find no basis upon which that exception could now be maintained. Walker v. Van Winkle et al., 8 Mart. N. S. 568; Godchaux v. Bauman, 44 La. Ann. 256, 10 South. 674.
The answer filed in the district court was merely an amplification of the exception to jurisdiction filed in the justice’s court, and the latter was as much a plea to the merits as the former, since it involved an inquiry into, and a decision of, the main issue in the ease, to wit, whether defendant was in possession as lessee or as owner. Moreover, the case being summary, it was incumbent on defendant to present his entire defense on the day fixed, and this, in effect, he did, though he called his pleading an “exception.” The
It is therefore adjudged and decreed that the restraining order heretofore issued in this case be now rescinded, and that relator’s application be denied, and this proceeding dismissed, at his cost.