Butler v. Bickham

Louisiana Court of Appeal

Butler v. Bickham

122 So. 871, 11 La. App. 48, 1929 La. App. LEXIS 566

CourtLouisiana Court of Appeal

DecidedJune 10, 1929

DocketNo. 489

StatusPublished

This text of 122 So. 871 (Butler v. Bickham) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Butler v. Bickham, 122 So. 871, 11 La. App. 48, 1929 La. App. LEXIS 566 (La. Ct. App. 1929).

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Opinion

LECHE, J.

This proceeding is by rule to eject defendant, Isaiah Bickham, from the occupancy of premises,’ of which according to the allegations of plaintiff’s petition, he had taken possession nine months before the filing of this suit. Another purpose of the rule is to correct the description of property of which the premises in question form part. It is also alleged that Isaiah Bickham has sold his interest in the property tó Mary and Will Tuckerson, and that he, Isaiah Bickham, has no longer any interest in the property.

We frankly confess that we do not understand the petition, owing to the apparently contradictory allegations which it contains. However, construing the nature of the petition by its prayer, the logical, and we may say, the only guide, it is evident that plaintiffs have mistaken their remedy.

Summary process may only be resorted to where specially authorized by law. C. P. 754. This is not a proceeding to eject a tenant, nor an ancillary proceeding in aid of pending litigation, and we know of no law sanctioning the summary ejectment of a person who, without right or title takes possession of property, and none is pointed out by plaintiff.

The district judge dismissed plaintiffs’ petition as in case of non-suit, reserving to them the right to set up title in a petitory action. We believe that he has properly disposed of the ease, and it is therefore ordered that his judgment be affirmed.

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LECHE, J.

This proceeding is by rule to eject defendant, Isaiah Bickham, from the occupancy of premises,’ of which according to the allegations of plaintiff’s petition, he had taken possession nine months before the filing of this suit. Another purpose of the rule is to correct the description of property of which the premises in question form part. It is also alleged that Isaiah Bickham has sold his interest in the property tó Mary and Will Tuckerson, and that he, Isaiah Bickham, has no longer any interest in the property.

We frankly confess that we do not understand the petition, owing to the apparently contradictory allegations which it contains. However, construing the nature of the petition by its prayer, the logical, and we may say, the only guide, it is evident that plaintiffs have mistaken their remedy.

Summary process may only be resorted to where specially authorized by law. C. P. 754. This is not a proceeding to eject a tenant, nor an ancillary proceeding in aid of pending litigation, and we know of no law sanctioning the summary ejectment of a person who, without right or title takes possession of property, and none is pointed out by plaintiff.

The district judge dismissed plaintiffs’ petition as in case of non-suit, reserving to them the right to set up title in a petitory action. We believe that he has properly disposed of the ease, and it is therefore ordered that his judgment be affirmed.

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Bluebook (online)

122 So. 871, 11 La. App. 48, 1929 La. App. LEXIS 566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-bickham-lactapp-1929.