Opinion
No. 33673.
April 26, 1937.
Appeal from Twenty-fourth Judicial District Court, Parish of Jefferson; L. Robert Rivarde, Judge.
Suit by Joseph Fradella and others against Gaspar Pumilia and wife and Marco Rosamano, called in warranty. From a judgment for plaintiffs, Marco Rosamano appeals.
Judgment amended and, as amended, affirmed.
Dart Dart, Leo L. Dubourg, and Henry G. Huckabee, all of New Orleans, for appellant.
Fred. A. Middleton, of New Orleans, for appellees.
This appeal was taken by one of the defendants for the purpose of having corrected the alleged error of including him as one of the defendants condemned in the judgment.
The record shows that the plaintiffs were declared to be part owners of the property in litigation where Gaspar Pumilia and his wife, Mrs. Josephine DeMatteo Pumilia, and Marco Rosamano were the defendants. 177 La. 47, 147 So. 496.
The case was remanded to the district court for the purpose of having determined how much rents and revenues were due the plaintiffs by the defendants Gaspar Pumilia and his wife. The appellant, Marco Rosamano, was the mortgage creditor and was not alleged by the plaintiffs to have received any of the rents and revenues from the property and therefore was not made a defendant in the petition asking for an accounting. When the case was heard on its merits with reference to the accounting, the eight plaintiffs obtained judgment in their favor for the sum of $266.02 each, against the defendants, in solido. Marco Rosamano appealed, but the other defendants did not.
The judgment of the lower court with reference to the accounting, in so far as it includes Mr. Rosamano as a defendant, is ultera petitionem. This inadvertence in the judgment will be corrected by deleting the name of Marco Rosamano as a defendant condemned in the accounting proceedings.
For the reasons assigned, the judgment appealed from is amended by eliminating the name of Marco Rosamano as a defendant condemned to pay the plaintiffs the amount of the rents and revenues found to be due, but, in all other respects, the judgment is affirmed; appellees to pay the costs of court.