Leon Godchaux Co. v. Sladovich

5 Pelt. 503

• Court: Louisiana Court of Appeal
• Decided: July 1, 1922
• Docket: NO. 8260
• Status: Published

Opinion

Dinkelapiel; J

Plaintiff institutes this suit against the defendant, claiming an indebtedness due plaintiff by defendant, in the sum of $415,00 with legal interest thereon from June 30th, 1915.

The suit is that defendant occupied offices in the Godohaux Building during various months of the years 1912-1913 and other offioes in the same building at different times, amounting in all to 1415.00. That the amounts claimed are past due and notwithstanding amicable demand are not paid. Alleging further that the said rental is not prescribed for the reason that defendant has acknowledged in writing that he owed the same, as per letter dated August 11th, 1915, signed by the defendant, and which letter is filed with and annexed to the petition and made part thereof. Wherefore ple-intiff prays judgment for the amount of its claim, with interest and costs.

To this petition there was filed an exception of prescription of three years, which being overruled on the 14th of Bovember, 1918, in Division "E", the case having been allotted to Division "D", an answer was filed which denied the alleg-tions of plaintiff's petition and asserted that the question involved wss not one of fact but of lave, admitting that he wrote the letter annexed to the petition, but avers that the claim of plaintiff is prescribed and hsxhxsxa that plaintiff has no right to recover and prays for judgment.

Subsequently the case wes celled in Division T" of the Civil District Court and there defendant plead that the exceptions pending before the Court had not hern properly disposed of and had never been waived or abandoned. The Court ruled th t said exception wes r.ct well founded and ordered s-me tc be overruled, nd on the trial of the merits of the case, svidenoe and pleadings were offered, amongst which was the letter of acknowledgment, admitted by the defendant to be his handwriting and his letter, together with a statement of the actual account between plaintiff snd defendant, which included a check for $75.00, signed by the defendant, made payable to plaintiff,and at the bottom of this chefik was stated "check to be for rent;1 which oheok was not paid, and was annexed and made part of the petition.

There was also offered in evidence, an itemized account showing the amount of rents claimed by the plaintiff and the exceptions xafEizatoisfaiBS of jurisdiction in the original Court, Division "E" again submitted to the Judge of Division "D", who ffixssx overruled seme and after hearing the evidence both oral snd written, judgment was ■rendered in favor of plaintiff for the amount of its claim, with interest and costs.

And the question presented for decision is, whether or not having failed to notify properly, the Judge of Division the os.se had been allotted to "E", of the fact that/Division "D" of the Civil Distriot Court but /jiaskáy having filed an answer in Division "E", the whole subject matter was properly before the Judge of Division "D", who rendered the judgment in this case and from that judgment there is this appeal.

The authorities are uniform fend to the following effect:

"A party who relies upon an exception dilatory in its nature, although arising from the forde of the prooeed-ings, must specially plead his exception and point out the particular defect upon which he relies.

Soott, Carhart & Company vs. Sarah E. Jackson et als, 12 La. Ann. 640.

"After a cause has been at issue nine years it is too late for the defendant to plead an abatement.

Lafon vs. Riviere, 1st Martin N. S. 130.

"Dilatory exceptions mast be pleaded in Heine lites.11

Howard vs. Steamboat Columbia, 1st La. 417. Otto Knoop Lumber Co. vs. Durning, 10 Orleans Appeals, 312.

The case having been tried, judgment rendered, we see no error in same.

For the reasons assigned it is ordered, adjudged and deereed, that the judgment of the Court aquo be and it is hereby affirmed, costs of both Courts to be paid by the defendant.

-Judgment affirmed-