State ex rel. Radovich v. Mineo

4 Pelt. 418, 1921 La. App. LEXIS 36

• Court: Louisiana Court of Appeal
• Decided: February 7, 1921
• Docket: NO. 7982
• Status: Published

Opinion

OPINIOJS

By his Honor John St. Paul.

Relator seeks by Mandamus to compel the Recorder of *St ^3 St it Mortgages.to cancel Ml UmeriptloR from his records a certain building- contract entered into between the Relator as owner and the Respondent (Mineo) as builder. The contract in was entere^ into and recorded-August 1917; respondent then proceeded regularly with the work until January 191R, when he ceased working and was formally put in default. At that time he had been paid all but $400 on account of the contradst. of which $200 was afterwards paid out b'- bis order and for his account.. The Relator then finished the building at a cost which exceeded $200. i>o that the respondent has been paid all that was due him under the contract; and there were no liens recorded against the building at any time. This writ was applied for^ Apr 11^19 20.

I.

It is contended that Mend aims is not a proper remedy, hee-use the Relator has other means of redress, towit, an ordinary action.

But under the Code of Practice (Art 8S1) "This *<Uc^u!L ¿¡6l, ^discretion of the judge, even when a party has other means of reRief, if the slowness of ordinary legal forms Í3 likely to produce such a delay that the s. x x administration of justice will suffer from it."

3ut since the judge is vested with discretion to isát>e the \vr*t vtfieo applied for, it is clear that Ti© has also discretion to recall it when in his opinion tv^ 5°su?s presante'3 by t,v« return are such that they can, he tried more advantageously in the ordinary w¿y. And this is all tV t w?s decided in Koulet vs Acme Lumber Co, 115 La 897 (896 )

2ut there-is no such o°se g-esnntod ^«re. Aslator has shown in a speedy and convincing manner thnt tv© respondent abandoned, the work and has been paid all that is due him under the Contract; and that no óth«v liens ‘Ka.ve heen recorded against the pronerty. cCas&dfoot' . Soo-&o/

u.idev f^e circumstances, to relegate "elstor to the Tctp and te<Hov.c process of an oM(’i:i»r?r '-ction, v/it> Ms prop-'^ty tied :*•■* in the mcy-v-Mi^, vov.id M e d«ni?i of justice purely ^n* Mm^iy,,

II,

^s to Act P.G'l of 1916, vT* are clearly of opinion that wMti it is shown (as it is here) that the contractor h^s hese pcid in full *he amount of hirs contract, and that no 'Mens hove hc^r- rpcorded within 45 df ys after the building has heen ac^pted or contractor dnf"/uited the ov.nor then has r. right te ho^c the inscription of t’*e conirc-et crno'‘?i^'5; for the ov-w"’ is clearly "an interested party,"

February 7th, 1921.

[There nas mentioned in the pleadings and in the argument s claim for extra work amounting to :;'17fi, eaid to have heen recorded against the property long s.ftervvards; hut as relator has not asked the cancellation of this inscription, and respondent has asked no judgmenl therefor, we are of opinjon that p*>np is not involved here in.

[The judgment apnea led from seems to us correct, and accordingly

Judgment Affirmed.

Hew Orleans ha,