Schmidt v. Conservative Homestead Ass'n

• Decision Date: 07 January 1935
• Docket Number: 32850
• Citation: 181 La. 369,159 So. 587
• Parties: SCHMIDT v. CONSERVATIVE HOMESTEAD ASS'N
• Court: Louisiana Supreme Court

159 So. 587

181 La. 369

SCHMIDT v. CONSERVATIVE HOMESTEAD ASS'N

No. 32850

Supreme Court of Louisiana

January 7, 1935

Rehearing Denied February 4, 1935

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

Suit by James E. Schmidt against the Conservative Homestead Association. From the judgment dismissing the suit on an exception of no cause of action, the plaintiff appeals.

Judgment annulled, exception of no cause of action overruled and case remanded.

Louis E. Jung, of New Orleans, for appellant.

Sol Weiss and Yarrut & Stich, all of New Orleans, for appellee.

OPINION

O'NIELL, Chief Justice.

The plaintiff has appealed from a judgment dismissing his suit on an exception of no cause of action. The suit is for damages for an alleged malicious prosecution for embezzlement.

It is alleged in the plaintiff's petition that the prosecution for embezzlement was malicious and without probable cause, and that it was terminated by the entering of a nolle prosequi by the district attorney. Notwithstanding these allegations, the judge sustained the exception of no cause of action because he concluded, from certain records in other proceedings, which were not part of the plaintiff's petition, that the prosecution for embezzlement was not without probable cause. The records which the judge referred to were: First, the record of a civil suit in which the present defendant, homestead association, obtained a judgment against the present plaintiff, Schmidt, for $ 3,467.25, in another division of the civil district court; and, second, the record of the criminal prosecution for embezzlement, in the criminal district court. These records were not admissible in evidence, because in fact no evidence is admissible on the trial of an exception of no cause of action. The question whether a petition discloses a cause of action must be determined from a consideration of the allegations of the petition itself, including, of course, any documents that form part of the petition. The records which the judge based his ruling upon in this case were offered in evidence on the trial of the exception of no cause of action, and were admitted in evidence over the plaintiff's objection. But these records did not form part of the plaintiff's petition.

There is no allegation in the plaintiff's petition tending to contradict his allegation that the prosecution for embezzlement was without probable cause. The only reference that is made, in the petition in this suit, to the suit in which the homestead association obtained the judgment for $ 3,467.25 against Schmidt, is the allegation that the homestead association did not accuse Schmidt of embezzlement in that suit. Hence there is no reason why the judge should have considered the record in that suit, in determining whether the plaintiff's petition in this suit disclosed a cause of...