Bladg v. Giacomino

• Decision Date: 05 May 1930
• Docket Number: 30402
• Citation: 170 La. 638,128 So. 661
• Court: Louisiana Supreme Court
• Parties: BLADG v. GIACOMINO

128 So. 661

170 La. 638

BLADG v. GIACOMINO

No. 30402

Supreme Court of Louisiana

May 5, 1930

Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage Judge.

Suit by Isidore Bladg against Joseph Giacomino. Judgment for plaintiff, and defendant appeals, and plaintiff answered appeal, praying for amendment of judgment.

Affirmed.

Daly &amp Hamlin, of New Orleans, for appellant.

Jas. G Schillin, of New Orleans, for appellee.

OPINION

LAND, J.

This is a suit for damages in the sum of $ 2,690 for the unlawful arrest and malicious prosecution of plaintiff by defendant, on a charge of embezzlement of a wooden store counter.

Plaintiff was prosecuted under an information filed by the assistant district attorney in the criminal district court for the parish of Orleans and was acquitted.

Plaintiff alleges that the prosecution was initiated against him on the complaint and at the solicitation of the defendant, and that defendant acted with malice and without probable cause in making the charge.

Judgment was rendered in the lower court in favor of plaintiff in the sum of $ 560, with legal interest from judicial demand, and for all cost.

From this judgment defendant has appealed.

Plaintiff has answered the appeal and prays for an amendment of the judgment by increasing the amount of the damages to $ 1,000.

Defendant avers that he acted with probable cause and without malice in making the affidavit upon which the prosecution and information were based, and was guided by the instructions of the prosecuting officer in making said charge, after defendant had made a full and fair statement of the facts of the case to the prosecuting officer.

The plaintiff was a tenant of the defendant and operated a soft drink stand in the place rented.

Defendant states positively in his testimony that he canceled the lease and consented for plaintiff to vacate the premises.

Plaintiff left the premises and took with him a counter which he claimed to own. The counter was moved in broad daylight, with the assistance of a negro drayman.

Thereafter, defendant called at the new place of business of the plaintiff and demanded the return of the counter as his property, and, upon the refusal of plaintiff to deliver it, caused his arrest on a charge of embezzlement.

The assistant district attorney testified that defendant came to his office and stated that he had bought a counter from a tenant of his, and, after he had bought the counter, it had remained in the possession of the tenant, and, after the tenant had moved out, he had taken the counter with him and would not give it back.

The assistant district attorney further testified that he asked the cost of the counter, and that defendant stated that it was $ 10.

It was upon this statement of the facts of the case, made by defendant, that the prosecuting officer advised the charge of embezzlement.

Defendant testified, however, on the trial of this case, that plaintiff owed him some money for rent, and agreed that defendant could have the counter as a credit of $ 10 on the rent.

But plaintiff denied on the witness stand that he had made any such agreement with defendant, and stated that defendant owed him some money, when plaintiff left the leased premises, and that he could not collect same from defendant.

Ulmo, a witness for defendant, also testified that he had heard a conversation between plaintiff and defendant, in which plaintiff had said: "Giac, you want to buy the counter?"

Defendant said: "No, that is my counter. You owe me rent and I will keep the counter on the rent."

Defendant's own witness corroborates the testimony of plaintiff, and shows that plaintiff did not sell the counter to defendant, or agree that defendant should have the counter in lieu of rent.

Plaintiff had bought the counter and brought it with him to the leased premises. This is not denied by the defendant.

That a landlord does not acquire the ownership of movables in the leased premises, merely because the tenant may owe rent, and the landlord may have a privilege and right of pledge on the...