
    NO. 8162
    COURT OF APPEAL PARISH OF ORLEANS
    MR. AND MRS. ERNEST RUFFO versus H. E. MARCOTTE.
    
      
    
   Dinkelspiei;. J,

This suit grows out of the same controversy decided, in this 06urt between these same parties, being record No. 7777 of this Court and it- is contended that the plaintiffs in this case had instituted an aotion against the defendant olalming the sum of One Hundred end Twenty Five Dollars for rent when he had in the same aotion brought suit for possession and therefore the only question presented before us, is whether or not pending suit for possession an aotion for such rent for the said premises oan be brought at the same time.

The same question was presented by the defendants and deoided adversely to them by this Court and a oopy off that opinion presents the issues and decides the question so that there is nothing left for further deoision in this oase.

"Mr. and Mrs. Earnest Euffo vs. H. E. Marcotte.

No. 7777

Since the filing of the transcript of acpee-1 in this oase, the plaintiff has instituted an aotion in the District Court against the defendant in which he claims judgment for One Hundred Dollars for rent for the months of August, September, October and November lest and for ell such additional rents as may fall due from month to month pending the prodeedings and that the lease for the remainder of the term be cancelled and annulled and that he be out inpossession of the leased premises.

The defendant and appellant thereupon brought the above petition to Che attention of this oourt, and construing said petition ss an abandonment of the original suit for possession and incompatible therewith, moved this oourt to remand this oese to the District Court for the purpose of inquiring into the efieot of that suit for rent ucch this suit for possession.

We think it unnecessary to take such action, as the Supreme Court has already settled th'e question. In the oases of Dubois vs. Exiquee 14 A. 437, Fox vs. HoKee 31 A, 67 and Doullut vs. Rush 143.La-. 443 (451) the Supreme Court said that there was no inoonsistenoy in the demand for the dissolution of I a lease end for the rent during the oooupanoy of Bwxi the les- i see up to the time he surrenders possession of the leased preaisea In the case of Delmar vs. Alharstadt 10 Ct. App, 148 this oount decided that s notice to vacate and a suit for possession are not v/e.ived by a receipt, during the pendenoy of the suit, ccf rent past due.

The case of Deslcnde Vs. O'Hern 33 A. 14 relied upon by ' appellant is not in conflict with these opinions. In that .oseé iel the Court maintained en injunction against the exeoution of a v»rit of eviction for the reason that, after the judgment of evioSion, the lesser as a compromise, had "agreed not tc exeoute this judgment and to permit the le33ee to remain bn the premises if he (the lessee) would pay costs and the entire rent." The faots in this case are different. The lessor hss only sued for the rent accrued ”nd to accrue during the actual occupancy of the premises by the lessee. Surely the leasee cannot occupy the premises free of rent, nor does the ls-w me.kg the lessor forfeit his right to the rent as a penclty for suing for eviction for non-payment of rent, nor lose his right to a suit for eviction as a penalty for suing for rent due for occupancy.

The motion to remand is therefore denied, and as the petition for a rehearing has not oonviirsa.d us of an error in our original coinion, the reh-sring is also denied.

January 13th. 1930.

ñs.Fíul, J: ócncurs in the refusal to remand, but dissents as refusal tc gr=nt t. rshisrlhg." .

For the reasons assigned it is ordered, adjudged and decreed that the judgment of the Court anjua be and the same is hereby affirmed, oosts of both dourts being peid by the defendant.

-Judgment affirmed»

NO. 8162.

COURT OP APPEAL PARISH OP ORLEANS.

MR. AND MRS. ERNEST RUFFO versus H. E. MARCOTTE.

On rehearing.

Rehearing refused.

Dinkelspiel; J.

for We are oonvinoed that our reasoi/ x£ judgment Jin thia oase was oorreot and therefore the original Judgment rendered bp us in this oase is reinstated and now made the Judgment of this Court.

Por the reasons assigned the judgment herein rendered is affirmed with ooets in both Churts against the defendant.

-Judgment affirmed-  