Glain v. Sparandeo

• Decision Date: 10 December 1906
• Docket Number: 16,393
• Court: Louisiana Supreme Court
• Parties: GLAIN v. SPARANDEO

44 So. 120

119 La. 339

GLAIN v. SPARANDEO

No. 16,393

Supreme Court of Louisiana

December 10, 1906

On the Merits, April 15, 1907. Rehearing Denied June 17, 1907

Appeal from Civil District Court, Parish of Orleans; Fred. Durieve King, Judge.

Action by Robert Glain against Joseph Sparandeo. Judgment for plaintiff. Defendant appeals. Reversed.

Stafford Lambert & Robinson, for appellant.

George Joseph Untereiner, for appellee.

OPINION

MONROE J.

On Motion to Dismiss Appeal.

Plaintiff (appellee) moves to dismiss the appeal herein, on the ground that it was taken by motion, and without citation, during a term of the court subsequent to that in which the judgment appealed from was rendered.

The judgment was rendered on June 26th of one term, and signed on October 15th of the next term, and the appeal was taken on the day after the signing. It was properly taken by motion in open court and citation was unnecessary. Louque's Digest pp. 15, 16, Tit. "Appeal" 1 (b) Nos. 1, 2, 3, 8, 9 10, 11; Sackett, Grymes & Co. v. Attaway, 11 La.Ann. 181; Consolidated Association v. Mason et al., 24 La.Ann. 518.

The motion to dismiss therefore overruled.

Statement of Case.

Plaintiff, by original petition, alleges that he leased from defendant a portion of certain premises (a room) opening upon a side gallery; that, while moving out, the gallery gave way, and he was precipitated to the ground and injured; that the supports of the gallery were rotten, but that the defect was not apparent; and that defendant was negligent in failing to have the gallery inspected, and is liable, on his warranty as lessor, in damages for said injury. By supplemental petition, he alleges that he was lowering a dresser over the railing of the gallery when the railing and posts gave way, causing the dresser to jerk and pull him over. Defendant filed an exception of "no cause of action," and answered that defendant, having failed to pay his rent, was notified to vacate the premises on July 31, 1905, but failed to do so, and that on August 7th, the date of the alleged accident, he had ceased to be a tenant of defendant, and was a trespasser, or third person, to whom defendant was under no contractual obligation.

It appears from the record, and the admission of counsel, that plaintiff gave a bond for costs, in the sum of $ 25, and that subsequently defendant obtained an ex parte order directing him to furnish an additional bond, in a like sum, which order (made April 10th) was served April 11th on plaintiff's attorney; that on April 23d defendant ruled plaintiff to show cause why his suit should not be dismissed, on the ground that the additional bond had not been furnished; that before the return day of the rule (April 27th) the additional bond had been furnished, and that the rule was dismissed.

It further appears that plaintiff had paid his rent up to July 13th, but that, not paying in full for the succeeding month, he was notified to move out, and was in the act of doing so when the accident occurred. A portion of his furniture had been carried out through the front of the house, but it was decided to lower a bureau, or dresser, over the railing of the back gallery down into the yard. Merrick and Taylor, two men who had been hired for the purpose, lifted the dresser over the railing, and rested it on the edge of the gallery, while plaintiff held one end of a rope, the other end of which had been tied around the dresser, and the dresser was then pushed off the...