Castaing v. New Orleans Improvement & Banking Co.

5 Rob. 177

Opinion

Bullard, J.

*

The plaintiff represents, that he acquired by lease from the Improvement Bank, the right to receive taxes upon all auction sales made in the Rotunda of the City Exchange, during fifteen months. That in the lease, the following existing regulations, established by the Bank, were incorporated, to wit: 1st. The Rotunda shall be open for business every day from eleven o’clock, until three in the afternoon, Sundays and holidays only excepted. 2d. Auctions shall be made on the tribunes or rostra established for that purpose in the Rotunda. He complains, that Ducros, Sheriff, had made an auction sale in the Coffee House, or vestibule of the St. Louis Exchange, a part of the same edifice leased to Alvarez ; that he has thus been disturbed in the enjoyment of the property leased to him ; and he sues the Bank, Ducros, and Alvarez for damages, which he lays at two thousand dollars each.

Deslex, for the appellant. Marsoudet, for the defendants.

It is not necessary to inquire into the defence set up by Ducros and Alvarez, because this is an appeal by the plaintiff from a judgment of the District Court, sustaining what is called an exception of the Bank. The substance of the answer of the Bank is, that the plaintiff has no right of action against them, not having suffered any disturbance, either in fact, or law, in the possession of all the rights and privileges enumerated in the lease ; and of the right of receiving the taxes on the public .sales made in the Rotunda : and that, he has never ceased to be in peaceful possession of the same. They further allege, that if said Castaing had really suffered any disturbance in the possession of said rights and privileges, it is not by the act of the Bank ; and they cannot be made responsible for all the acts of the persons over whom they have no power nor control.

This appears to us rather an answer to the merits, than an exception.* Tf it had been overruled, it is not easy to imagine what further answer could have been made by the Bank. All the facts are denied, except the lease. The alleged disturbance is denied, either in law or fact; and it is expressly averred, that the plaintiff has never ceased to enjoy all the rights and privileges conferred upon him by his lease. If the Bank had simply averred, that the facts set forth in the petition did not amount to such a disturbance as the lessor had warranted against, and that it did not disclose a legal cause of action against the Bank, it would have been properly an exception ; and if overruled, the defendant might have answered afterwards to the merits. Without expressing any opinion, therefore, upon the questions presented by the pleadings, we are of opinion, that the court erred in dismissing the suit, without a trial upon the issues made up between the parties.

The judgment of the District Court is, therefore, reversed, and it is ordered, that the case be remanded for further proceedings according to law ; the costs of the appeal to be paid by the ap pellee.

Morphy, J., being interested in the question, did not sit on the trial of this case.