Roussel v. Dalche

• Decision Date: 27 April 1925
• Docket Number: 27129
• Citation: Roussel v. Dalche, 158 La. 742, 104 So. 637 (La. 1925)
• Court: Louisiana Supreme Court
• Parties: ROUSSEL v. DALCHE

104 So. 637

158 La. 742

ROUSSEL v. DALCHE

No. 27129

Supreme Court of Louisiana

April 27, 1925

Rehearing Denied May 25, 1925

Writ granted.

William Winans Wall, of New Orleans, for relator.

Paul W Maloney, of New Orleans, for defendant.

OPINION

ST. PAUL, J.

Plaintiff alleged that she leased to defendant certain premises in, or near, a certain amusement park, from July 12, 1923, to December 31, 1924, with privilege of renewal for two years for and in consideration of one-half the receipts, less expenses, settlements to be made weekly; that defendant failed and refused to make settlements as agreed upon; that he was duly notified to vacate the premises, but refused to do so. She prayed that defendant be condemned to surrender the premises, and asked for the summary trial provided by law for the ejectment of defaulting tenants.

The defendant objected to a summary trial, on the ground that this was no lease, and hence the relations of landlord and tenant did not exist between plaintiff and himself; that he had a counterclaim against plaintiff which he wished to urge by way of reconventional demand; and that plaintiff should be relegated to an ordinary action.

The trial judge sustained defendant's position, and refused to hear the case summarily, wherefore relatrix applied to this court for a mandamus to compel him to do so.

I.

In Cepro v. Matulich, 152 La. 1072, 95 So. 226, we held that we would not interfere with the fixing of cases in a trial court, unless the circumstances show that a party will suffer some substantial injury by the improper fixing of (or refusal to fix) a case. But, where a landlord is seeking to eject a defaulting tenant, he clearly suffers a substantial injury when he is refused the right to the summary trial provided by law in such case.

We also held in that same case that a tenant cannot defeat the right of his landlord to proceed summarily with the trial of his suit to eject by engrafting or attempting to engraft thereon, by way of reconvention or otherwise, anything foreign to the one issue, whether the landlord be entitled to the possession of the premises, and to that we adhere.

II.

In Logan v. State Gravel Co., ante, p. 105, 158 La. 105 103 So. 526, No. 26429 of our docket, decided March 2, 1925 we reviewed the authorities as to the nature of the consideration necessary to support a contract of lease, and our conclusion was (in effect) that any consideration sufficed which was or could be fixed in money, commodities, or labor, and which was not dependent on the mere whim of the landlord or...