
    No. 4367.
    Mrs. A. Langsdorf v. S. LeGardeur.
    Tli© plea of res judicata can not prevail, as there was a judgment of nonsuit as to the portion of the claim embraced in this action.
    The evidence establishes the lease for the time claimed, but the court erred in granting a privilege, as it is shown that the furniture was moved from the premises two or three months before this suit was brought.
    APPEAL from the Seventh District Court, parish of Orleans. Gollens, J.
    
      A. Voorhies, for plaintiff and appellee. JE. Filleul, for defendant and appellant.
   Howelt., J.

Plaintiff sues for the balance due on a contract of lease and caused furniture to be provisionally seized. The defense is the plea of res judicata and the averment that the defendant occupied the premises by the month; that he gave the legal notice before vacating the same; that he tendered the keys and the rent for the month at the end of which he moved out, and upon plaintiff’s refusing to receive them he deposited them in the court where a suit was pending, and plaintiff has since taken them, and thus acquiesced in the judgment in said suit. A motion was made to set aside the attachment on the grounds that the attachment having been set aside in the suit above referred to there is res judicata, that the affidavit is false, and that plaintiff has no privilege.

Judgment was given in favor of plaintiff with privilege, and defendant appealed.

The plea res judicata can not prevail, as there was a judgment of nonsuit as to the portion of the claim embraced in this action.

The evidence establishes the lease for the time claimed, but the court erred in granting a privilege, as it is shown that the furniture wa3 moved from the premises two or three months before this suit was brought. It is true that the plaintiff took the money and keys deposited in the first suit, but only after the judgment therein, which awarded her the sum so deposited, and she took the keys upon informing defendant she would rent the house for his benefit, and because the house was left exposed and subject to damage.

It is therefore ordered that the judgment so far as it grants a privilege on the property provisionally seized be reversed and annulled, that the provisional seizure be set aside at the costs of plaintiff, and that in other respects the judgment be affirmed, plaintiff to pay costs of appeal.  