Vincent v. Schweitzer

Lüsley, J. The demand of the plaintiff against the defendant was originally stated to be over three hundred dollars, but was afterwards admitted by the plaintiff, in the record, to be for a sum less than three hundred dollars. The amount in dispute is, consequently, too small to give this court jurisdiction of the present appeal, which is not, therefore, judicially before us. See State Constitution of 1864, tit. 5 Art. 70; Act of Leg. 1864, No. 11, p. 18. There is, however, in the same record, a reconventional demand set up by John Schweitzer v. Widow Vincent, for the sum of four hundred and forty-five dollars, for rent. We can, therefore, entertain his appeal for that. See Gove v. Kneatig, 3 Rob. 387; Hanna v. Bartlette, 10 Rob. 438; Exparte Goodwin, 11 Rob. 12. The case of Marshall & James, 9 An. 92, cited by plaintiff in reeonvention, is not, we think, applicable to a case like this. "We have examined the demand of the plaintiff in reconvention and the evidence adduced on the trial of the case, and, we think, it fails to prove any indebtedness by the-defendant for rent, for the period for which it is claimed. Aetori incumbit probatis. The plaintiff having failed to make out his case, the judgment of the lower court on the reconventional demand must be affirmed. It is therefore ordered, adjudged and decreed, that the judgment of the court below on the reconventional demand be affirmed, the costs of appeal to be paid by the plaintiff in reconvention and appellant.