
    NO. 7921.
    MRS JOS. FREDERICO. VS J. S. SCHEINKRAUT.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   OPIHIOK.

St. Paul, Judge-.

This Is a proceeding to eject a tenant after due notice to vacate.

Plaintiff alleges that defendant "failed-to pay the rent note x x x x due March 1st hut paid said rent note only on March 4th, and thus violated the terms of the lease".

Defendant excepted that the petition showed "no cause of action", and then set up as a special defense that plaintiff had waived prompt payment of the rent hy heretofore receiving the same at slightly delayed periods.

I.

The proceedings being hy rule the exception was not heard separately from the merits. On the trial it was shown that plaintiff had notified defendant prior to March 1st that she would thereafter "exnect him to comply strictly with the conditions of his lease", and that the rent notes had been deposited for collection In a certain hank.

The rent notes however were not made payable- at said hank nor at any other particular place, and it is neither alleged nor shown that any demand for the rent was made upon defendant .personally or at his place of residence.

Under the circumstances defendant was not in default since "in the absence of a stipulation in the lease to the contrary the rent is payable at the dwelling of the lessee", Lafayette Realty Co vs Puglia, 10 Orleans App 105; or at least the rent note should have Jjeen presented to defendant personally, Bonnabel vs Metaire Cypress Co, 129 La 928; AajUoy)<S**U.H«£. syie, z?3. Ufar does the fact that defendant had on previous occasions taken up his notes <ic the hank where they had been deposited create any obligation on his part to do so again, Hazard vs Lambeth. 3 Rob 378;

As to the provisions of the lease reserving to the lessor the right to dissolve the lease without putting the lessee in default should the latter violate any of-the conditions thereof, these of course can have no possible application tp payment of rent, since such a thing as payment of money without the presence at the place of payment of the creditor or his representative to receive it is an actuad as well as a legal impossibility C. C. 2140.

II.

He have said that it is neither alleged nor proved that any demand for payment was mad- upon the lessee personally or at his dwelling, and hence he "was not in default. It is urged however that this court can on this appeal consider only the sueojal defense because of the provisions of Revised Statutes Section 2157.

But this is not sound.- It is true that a lessee has no right to a suspensive appeal unless he has filed a special defense; but his right to appeal devolutively on the whole o ase ia wholly independfchí' of any special defense, Iiauga vs §é Baradat, 7 Orleans ApbjAAÍ.k And this is. so tme that if ■ the lessor execute the judgment and' it is afterwards reversed, he will he answerable in damages, Mengelle vs Abadie, 48 An 669.

Hence the whole case is before us in one shape or another; and having the whole,case before us there is no reason why it should not be disposed of by one judgment. For it wojtld be manifestly absurd for us to divide our decree and say oh the one hand that the special defense is not good and hencce plaintiff may execute the judgment at her peril, and on the other hand that for other reasons the judgment is erroneous and cannot be executed at all. Even had the two appeals reached us seperately we would as a matter of course hare directed their consolidation. In re Land Development Co 10 Orleans App 180.

The judgment appealed from is therefore reversed and it is now ordered that plaintiff's demand be rejected at her cost in both courts.

New Orleans La, Oct 25th, 1920.  