170 So. 272 | La. Ct. App. | 1936
The trial court sustained an exception of no cause of action herein, and plaintiff appealed to this court.
The petition alleges that plaintiff purchased from one J.L. Monkhouse a certain parcel of land, with improvements thereon, located in Caddo parish; that Monkhouse had, on July 16, 1927, entered into a written contract of lease with the defendant herein, Louisiana Oil Refining Corporation, granting to it the use and occupancy of the property as a filling station for a term of five years, or so long thereafter as might be required to sell such quantities of gasoline and oil which, at the rate of one cent per gallon for gasoline and fifteen cents per gallon for oil, would pay to said lessee the sum of $5,000; that the right to sell and distribute gasoline and motor oil on said premises during the term of the lease was especially reserved and restricted to the lessee; that the lessee failed to operate the lease, or cause it to be operated, and has abandoned it; and that defendant refuses to cancel the lease, notwithstanding numerous requests.
The lease contract, a photostatic copy of which is attached to and made a part of plaintiff's petition, discloses that a cash consideration of $5,000 was paid to Monkhouse for its execution.
Judgment is sought by plaintiff decreeing the contract to be null and void, and ordering that it be cancelled and erased from the records of Caddo parish.
Although no formal motion for the dismissal of the appeal has been filed by defendant, its counsel suggest in their brief that this court is without jurisdiction, ratione materiæ, to review the decision of the trial court. If we have no jurisdiction of this matter, even though a motion urging the dismissal was not formally presented, it is our duty to take notice of that fact and refuse to entertain the appeal. Dupont v. Harris Ice Cream Co., Inc.,
The Louisiana Courts of Appeal are granted appellate jurisdiction, under article
The above-mentioned phrase, "the amount in dispute," according to the Supreme Court in the case of A. Baldwin Co. v. McCain,
As shown by plaintiff's allegations and the recitals of the instrument attached to the petition, the lease contract was granted to defendant in consideration of its paying $5,000, and it was to endure, without any specified time limit, until lessee was paid that amount from the sale of gasoline and oil. Thus it may be said that the original value of the contract sought to be annulled, and the thing in contest herein, was in the amount of $5,000.
There is nothing in the record disclosing that defendant has received any payment from the sale of gasoline and oil, or that the stipulated amount has been reduced or changed in any manner or to any extent. Therefore, for the purpose of passing on this jurisdictional question, we are compelled to accept the above amount as representing the value of the contract.
The amount or thing in dispute being of a value in excess of the jurisdictional limit of this court in cases of this nature, we must decline consideration of the appeal.
Accordingly, and pursuant to the provisions of Act No.
Appellant shall pay the costs of this appeal, and all other costs are to abide the final disposition of the case.