Hampton v. Cantone , 6 Pelt. 306 ( 1922 )

BY: WILLIAM A. BELL, JUDGE:

This case i>- present ly before 'tl..'' -!<j”rt a ’ - fendant’s motion to dismiss plaintiffs’ appeal for .•.■..ni jurisdiction rations raateriae. It'is contended the.' tl,' averments and demands pot forth in ¡'if.lnti'ft' .• •: gi nal petition having, among other things, specially ..-c.f un. :.. certain contract of pinrel ace of real estate s.l'Wod. to te worth 35.00Q, and pin ntiffs having specially prayr." for specific performance ¿.impelling defendant .to eonvc; i'e h ' the property in guestion, that on appeal from s .iudrrie "¡ dismissing their demand, this leurt i¡; vh Í1 out juris Hot I on ratipne materiae to entertain the appeal.

The record shows that in th<- or’g’nsl petition plaintiffs prayed for specifio .-icrformance , as ah w, _“t forth, and in the altern- tlve for daivig-’s in the oum of ?1,375, Suit was instituted on-lepter.ber 1, 1?2~, t: v.hic.idefendant filed exceptions of np cauce of net'.on, on '’optember 15, 1920. Plaintiffs then filed o sup^lemcnii.' and amended petition on J&k.. .ry 10, 1921, in\ vhich it ■ o allegad "that they rs-adop't all of the allegations of said original petition, except as may he modifies lore lx," ciad t■ .’.í-i pro-, ceed to allege in lar. II <• f. said supple ..ion tel politic’.: that they had recently, and nf*cr filing of the crUinnl ¿otlt’cn, boon reliably informed, and therefore alleged as true, 'hat the defendant did not oi n tee real estate in guest ion. S ’rH•••’■ he represented himself to be the ovner, fed that they thcreJorc, on reliable information received, further alleged that the d ifeudaut wae only a port ov.per of the property involved. In Par. IV, of the supplemental petition, it was further pleaded that owing to the bad faith, delays t-.p damages ejausod to the plaintiffs by the faults of th.', defendants they were entitled to be relieved of any obligations to purchase the property described, and that because of the faults and bad faith of •the defendant, th-† they were entitled to recover the domares previously alleged in lar. Til. of their original petition, aggregating the sum of $1,375. The prayer of the supplemental petition reads as follows:

"I E E S S f C B.E, pli.irtiffs pray that this supplemental petition be filed and that defendant be duly cited and served herewith according to law, and that, after legal delays and due proceedings .had, there be Judgment- in their favor against said Antonio Cantone in the principal sum of TEIKTYEtT ruinsriR ajtb sevebty-five doItLAbs ($1375.00) for damages above stated and reasons and causes alleged in the original and supplemental petitions",, with Five i’er Cent [pfo) interest per annum from September 1st, 1920, unl.il paid, and all. costs of suit.

Petitioners further pray for full and general- relief."

On January 24, 1921, defendant, among other exceptions, which need not be detailed here, filed additional plea of no causé of action, against the supplemental petition above referred to. All exceptions, to both the original and supplemental petition, were over-ruled by the Trial Court, and after issue Joined there was finally Judgment dismissing plaintiffs' petition, from which Judgment appeal has been tsEten to this Court.

We are of the opinion that the supplemental petition, with its specific reservations, allegations and prayer, conclusively establish, with full regard to the provisions of‘thé Code of Practice of this State, a complete abandonment, in proper and legal form, established before Judgment, of all-demand for specific performance as originally set forth in the original petition filed in'these proceedings. Every provision, pf. the Code of practice in regard to the filing of supplemental pleadings, has been observed, and neither the supplemental pleading nor the prayer contained therein, has, in any manner, prejudiced; the rights of the defendant, as said rights existed' either before or subsequent to the Judgment herein appealed from.

The desideratum glead*/"01 ing, cannot be stated better "vCau, by the languu-e found in Art. 161 of the Code of Practice, -• '-ich próvidos:

"It is sufficient, in -ill judicial demands vl-'ich are required to be in writing, to express oVcrly what is demanded, with such conclusions ..j :.oy servo for a basic to the judgment to be rendered in the cause,"

The "conclusions" referred to in the above article are necessarily found’ in the ¿loader's prayer, which concludes his original or supplemental p.etiti t., or answer, a3 the case my be, and with -due regard' to the proviso found in Art. 149 of the Code of Practice, that "inconsistent demands cannot be nimulated in the same action," Jfé Snow of no prohibition against the litigant either amplifying or modifying his original demand before issuo joined or judgment rendered. It has been frequently stated as a doctrine of judicial interpretation, supported by endless authorities that in order to ascertain vhat is demanded vin a particular suit, resort must be had to the prater of the petition. Hart et als. v. Untoreiner et als., 14 Orleans App. 146; Slocum v. de Lizardi, 21 Ann. 355; Zemper's Heirs v. Hulick, 16 La., 44; Hood v. Segrest, 1 Rob. 109; Hass v. Irion, 121 La., 149.

In Hader v. Fox, 15 La. 132, it was held "that a supplemental petition praying for a new order of seizure, and claiming instalments not due when the original petition was filed, does not change the original demand, and is admissible." It has been further held, and is consistent with Art. 155 of the Code of practice, -that a supplemental petition which does not change, but simply amplifies the issues tendered, should be allowed. Ramoneda v. Kikletisch, 1 Orleans App., 296; Trenchard v. Railway Co., 123 La., 126; Semitit-r before judgment Is always permissible, and the supplemental prayer in the pileadings before us^ carries with it an abandonment of the original claim for specific performance, and under all rules of consistent pleading looking to the simnlifvinf' of isauea Joined, the restricted, or modified demand in this proceeding has Clearly established the fact that, had the Judgraont been rendered in favor of jilaintiffs against the defendant, nothing more .«(in a Judgment for da".-ia<*e3 in the sum of fl,£i7E could have l-reu rendered, for the reason tint noth: ng more has been áoK..ítdo 1 on ihe fane of <vc pleading3.

MOTION TO DISMISS IS DENIED.

April 24, 1922.