Bijou Co. v. Lehmann

Citations

• 118 La. 956
• 43 So. 632
• 1907 La. LEXIS 831

Syllabus

<p>1. Pleading — Exceptions—No Cause op Action.</p> <p>Where a defendant files an exception of nocáuse of action after default, and also files an answer, the exception should not be considered as an answer admitting the facts alleged in the petition for the purposes of a trial on the merits-Peremptory exceptions founded on law do not go into the merits, and may be filed at any stage previous to definitive judgment. Code Prac. arts. 345, 346.</p> <p>2. Same — Piling After Default.</p> <p>In the few cases in which an exception filed after default has been treated as an answer, the default was set aside and no other defense was made. By moving to set aside a default on the filing of an exception, the defendant treats the exception as an answer.</p> <p>3. Landlord and Tenant — Lease — Construction.</p> <p>Where, under the terms of a contract of lease, money is loaned by the lessee to the lessor on interest, the principal to be paid by the future occupancy of the premises, and the lessor fails to complete and deliver the building as stipulated in the contract and is put in default, the lessee has a right of action to recover the loans represented by notes. A plea of prematurity should be filed in limine litis, and comes too late after judgment by default.</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>