67 So. 335 | La. | 1915
This is a summary proceeding instituted by the owner of a certain building in New Orleans, to evict a tenant or sublessee of a portion of the premises. The suit was dismissed on an exception to the summary proceeding, and the plaintiff has appealed.
The defendant has filed two motions to dismiss the appeal. The one based upon the alleged insufficiency of the appeal bond cannot be entertained, because it was filed later than three days after the return day. If it had been filed within the three days, it would be unavailing now because it was waived by the appellee’s answer to the appeal, in which he prayed that the judgment be affirmed.
In his second motion, however, the appellee moves to dismiss the appeal on the ground that the amount involved, or the matter in contest, is below the jurisdiction of this court. This cause for dismissing an appeal may be suggested at any time and may even be noticed by the court without any suggestion from the appellee. His answer to the appeal did not waive his right to have it dismissed for want of jurisdiction, because he could not, by his acquiescence or consent, confer jurisdiction ratione materise. The expression in Holbrook v. Holbrook, 32 La. Ann. 15, to the effect that a motion to dismiss an appeal for a cause for which we might dismiss the appeal ex proprio motu cannot be considered unless filed within three days after the return day, cannot be construed to mean that, if the appellee acquiesces in an appeal, we must consider and decide the case even though we have no appellate jurisdiction.
The allegations of the plaintiff’s motion, which may be considered pertinent to the question of jurisdiction, are: That the plaintiff purchased the premises from the Whitney-Central Trust & Savings Bank on the 22d of July, 1914; that, before the purchase, the Jackson Brewing Company had held the premises under a lease and had subleased the same to one Charles Schutten for the 40 months commencing on the 1st of June, 1911, and ending on the last day of September, 1914, at the monthly rental of $450; that, in his sublease, Schutten had bound himself not to sublet the premises or any part thereof without the written consent of the lessor; that, nevertheless, mover (plaintiff) was informed, and therefore alleged, that Charles Schutten had subleased a part of the premises, that is, the third floor and half of the second floor, to William L.
In his answer, which was filed with the various exceptions, and has not been heard, the defendant contends that his lessor, Schutten, continues to occupy that portion of the premises not occupied by him (defendant), and that, under the terms of his contract with Schutten, he (defendant) has the right to occupy that part of the premises leased by him as long as Schutten continues to occupy the remaining portion of the premises. He alleges that while Schutten continues to occupy the premises, reconduction takes place in his (defendant’s) behalf under his sublease of a portion of the premises.
The issue presented by 'these pleadings is not within our appellate jurisdiction. The plaintiff has not proceeded against the lessee, Schutten, but only against the sublessee, Poer, on an alleged contract of lease at the monthly rental of $80. It is alleged in the plaintiff’s motion that the contract of sublease under which Poer occupies a portion of the premises has expired; hence there is no unexpired term to be considered. In suits by landlords to eject tenants, the jurisdiction of the courts is determined by the amount of the monthly or yearly rental. R. S. 2156; Lauga v. Baradat, 127 La. 542, 53 South. 856. The amount of even the yearly rental in this case is below our ¡¡urisdiction.
For the reasons assigned, the appeal is dismissed, at the cost of the appellant.