129 So. 675 | La. | 1929
Lead Opinion
This is a summary proceeding to evict a tenant, on the allegations, first, that the contract of lease has terminated, and, in the alternative, that the contract was violated by the lessees. The suit was brought under the provisions of section 2155 of the Revised Statutes, as amended and re-enacted by Act No. 55 of 1926, p. 68. The court gave judgment for the plaintiff, and the defendants have taken a suspensive appeal from the decision. The condition stipulated in the appeal bond furnished by the appellants is that they shall prosecute their appeal and shall satisfy whatever judgment may be rendered against them. The bond was made in conformity with article 579 of the Code of Practice, which prescribes the conditions of an appeal bond in an ordinary proceeding. The conditions of a suspensive appeal bond for an appeal from a judgment of eviction, in a summary proceeding under section 2155 of the Revised Statutes, are prescribed in section 2157, which requires the bond to be given as "security for all such damages as the appellee may sustain." The appellee in this case, therefore, filed a motion to dismiss the appeal for want of a valid appeal bond. In their brief filed in opposition to the motion to dismiss the appeal, the appellants invoked the provisions of Act No. 112 of 1916, p. 241; the ninth section of which act declares that no appeal shall be dismissed on account of any error in the amount of the bond, or for any inaccuracy or omission in *80 the bond, or for insufficiency of the surety or sureties on the bond, until the party furnishing such bond shall have failed to correct the error, inaccuracy, or omission, or to furnish a new or supplemental or additional bond, as provided in the statute. The third section of the act requires that a complaint of the insufficiency of an appeal bond, "either as to form or substance," shall be made in the court of original jurisdiction, and allows the appellant two days, after service of the notice of such complaint, in which to furnish a new or supplemental or additional bond.
Our opinion is that the act of 1916 protects the appeal against dismissal in this case, even though the conditions stipulated in the appeal bond are not in conformity with the statute on the subject.
In the case of Doullut v. Rush et al.,
The appellant, after filing his motion to dismiss *81
this appeal, filed his complaint in the district court, contending that, inasmuch as the appeal bond was not valid, the court had not lost jurisdiction of the case. On the next day after the notice of the complaint was served upon the attorneys for the defendants, they filed a suspensive appeal bond, conforming with the requirements of section 2157 of the Revised Statutes — protesting, however, that the appeal bond which they had filed theretofore was a valid appeal bond. The ruling which the district judge then made is complained of in another proceeding now pending on a writ of certiorari (
The motion to dismiss the appeal is overruled.
Addendum
This is an action to eject a tenant under the provisions of Act No. 55 of 1926. There was judgment for plaintiff and defendants appeal.
The trial judge found as a fact, and we agree with him, that the lessees assumed the obligation to police the lands and keep off trespassers. For the latter purpose it became necessary to obtain an injunction against certain persons, and the cost of this injunction in attorneys' fees and costs was $625, which defendants refused to pay, claiming that these costs were due by plaintiff alone.
We also find as a fact that defendants agreed to pay plaintiff 40 per cent. of the buyer's commission which they were to receive. This commission amounted to $1,100; but the defendants refused to pay plaintiff the $440 due thereon.
The district judge has given exhaustive reasons for finding as a fact that defendants agreed to police the lands and pay the legal costs thereof. It would serve no useful purpose to repeat those reasons here. Suffice it to say that defendants admitted to the attorneys employed for that purpose that they were liable for the bill and would have to pay it. Their alleged reason for doing so does not impress us. They claim that they made these representations in order to favor plaintiff by having the bill reduced, if possible. And the fact is that they did pay without protest the other costs of policing and posting the *83 grounds, without claiming reimbursement from plaintiff.
The district judge did not pass upon the question of buyer's commissions. But our conclusion is that defendants agreed to pay them to plaintiff. Otherwise we see no reason why defendants should have furnished plaintiff with an account of said commissions (amounting to $1,100, Tr. 21) and an account of the costs which they claimed a right to charge against it.
It is true that in the end, after first refusing to do so, defendants finally offered, as a compromise, to pay practically the whole of the attorneys' fees of $600, but they never did offer to pay, and always refused to pay, the 40 per cent. of the buyer's commission.
Our conclusion agrees with that of the district judge, that plaintiff is entitled to possession of the leased premises.