Iberville Trust & Saving Bank v. City Café

151 So. 267

• Court: Louisiana Court of Appeal
• Decided: December 4, 1933
• Docket: No. 1207.
• Status: Published

Opinion

MOUTON, Judge.

The original petition in this case was filed in May, 1931, the second in September, 1932.

In our original opinion (143 So. 73) we held that plaintiff had not set out a cause of action against the City Café, and, as to that defendant, dismissed its suit.

In the judgment by us in the second suit (150 So. 95), we held! that plaintiff had filed an amended petition which had no legal effect, as, legally speaking, there was no petition in the original suit because it did not show a cause of action, hence, there was nothing to amend, citing in support of this conclusion, Tremont Lumber Co. v. May, 143 La. 399, 78 So. 650.

Counsel for plaintiff in their application for a rehearing contend that we fell into an error in 'holding that the second petition was an amendment of the original petition.

The district judge, in his written opinion, says that the supplemental petition, it seems: to him, does not change the issues of the origr inal demand, and for that reason maintained the exception of no cause or right of action.

We, however, accepted the supplemental petition as an amendment, but for lack of essential allegations to give it the character of a new suit, the judgment below was maintained.

For these reasons and those given in our second opinion, the application for a rehearing is refused.

ELLIOTT, J., dissenting.