Callaway v. Webster

1 Rob. 553

Opinion

Martin, J.

The plaintiff claims certain arrears of rent from the defendant, his lessee, and the cancelling- of the lease. The defendant pleaded the general issue,and, in a supplemental answer, alleged that the premises Were in a dilapidated state; that it became necessary to repair them ; and that the plaintiff, as well as the persons from whom he holds, refused to be at any expense therefor ; whereupon, he effected there pairs at his own expense, and he claims their value in reconvention. The plaintiff recovered three hundred and seven dollars, and the lease was cancelled. The defendant appealed. His counsel has contended, that the judgment ought to be reversed: 1. Because it is not one of non-suit with regard to the claim in re-convention, but has the force of res judicata as to said claim. 2. Because no notice was given to the defendant of the day of trial of the suit.

* 3. Because no notice was given to the defendant of the day of trial of the suit, after the filing of his supplemental answer. The record shows, that the trial took place in the absence of the defendant, and 'that his counsel made an unsuccessful effort to obtain a new trial on that score, and on the grounds urged in his ‘favor in this court. It does not appear from any part of the record, except tbe notice to tbe defendant’s counsel, that tbe cause was fixed for trial. That notice, which was served on the 12th, stated that the case was fixed for trial on the 18th of February, 1840. The supplemental answer was filed on the 17th ; but it does not appear, that leave was obtained therefor.

It does not appear to us, that the new trial was improperly refused. On the merits, the lease is an authentic one, and no payment of rent is proved. The reconvention was properly disregarded, as it was claimed in a supplemental answer, filed without leave of the court, or of the plaintiff.

Judgment affirmed*

This was before the act of 10th February, 1841, sec. 16, altering the mode of fixing cases in the District, Parish, and Commercial Courts in New Orleans.