47 So. 2d 678 | La. | 1950
The appeal in this case was transferred to this court by order of the Court of Appeal for the First Circuit on the joint motion of the parties litigant declaring simply “that the amount in dispute between the parties is in excess of $2,000.”
The appeal to the Court of Appeal for the First Circuit was originally taken by the plaintiff, John C. Fontenot, from a judgment of the lower court dismissing the proceedings instituted by him under the provisions of Section 2155 of the Revised Statutes of 1870 to eject the defendants, Jesse and Harry Babineaux, from the premises leased by him at the corner of Cities Service and Maplewood Parish roads
This lease was originally executed by the plaintiff in favor of the Develins Corporation on March 1, 1947, for a term of five years (with provisions for renewal) and was assigned to the present defendants in November of 1947 with the approval of the plaintiff. As originally rented, the property was a bare lot of ground. The monetary consideration was only $25 a month, but another provision of the contract called for the erection of a frame building on the property that would become the property of the plaintiff regardless of whether the lease was terminated under its own terms or for cause. Complying with this provision, the defendants are now operating a business there and the implied breach of the contract is based upon the allegation of the plaintiff that the business being operated is illegal, consisting of gambling games and devices in open violation of the law.
Clearly the only issue in the case is the right to the possession of the property before the expiration of the lease and there is no allegation in the petition and no evidence in the record from which it can be concluded the value of this right is in excess of $2,000. This court is, therefore, without jurisdiction. The stipulation of counsel in the joint motion that the amount in dispute exceeds $2,000 is not controlling, being nothing more than a conclusion of counsel without any basis in fact.
For the reasons assigned, it is ordered that this appeal be transferred to the Court of Appeal for the First Circuit, the record to be transmitted there by the appellant within thirty days; otherwise the appeal will be dismissed at appellant’s cost.
