102 So. 2d 521 | La. Ct. App. | 1958
Lead Opinion
Park Place Association and Edmond G. Miranne instituted this suit seeking to enjoin New Orleans City Park Improvement Association from entering into a proposed contract of lease with New Orleans Pelicans, Inc., the subject of the lease being the stadium in New Orleans City Park. The proposed agreement between said parties is part of the evidence, and it reflects that the term of the lease is from March 15, 1958 to September 15, 1958, at a rental of $10,000 which “shall be placed in escrow at a time and place to be designated by the” lessor. After a trial of the case on the merits in the court below, the suit was dismissed. Plaintiff perfected this appeal from the judgment.
It is well settled in the jurisprudence of Louisiana that in injunction suits the value of the right in contest is determinative of the question of appellate jurisdiction. Ragusa v. American Metal Works, Inc., 1956, 229 La. 440, 86 So.2d 95; Johnson v. Nora, 1955, 228 La. 603, 83 So.2d 643; City of New Orleans v. La Nasa, 1955, 227 La. 953, 81 So.2d 7; Lerner Shops of Louisiana, Inc., v. Reeves, 1953, 224 La. 33, 68 So.2d 748; Breland v. City of Bogalusa, 1950, 217 La. 727, 47 So.2d 334; Frierson v. Cooper, 1940, 196 La. 450, 199 So. 388, 389.
It affirmatively appears that the defendant by virtue of the proposed lease agreement, if executed, will derive a profit or income of $10,000, and for the purpose of fixing the value of the right in contest in this case, said amount must serve as the standard or criterion.
In Frierson v. Cooper, supra, the plaintiffs instituted suit to enjoin the defendant from playing or permitting music to be played at night in the courtyard in the rear of defendant’s place of business. The Supreme Court determined it had jurisdiction of the appeal in that case saying:
“ * * * it appears that the defendant derives a net profit from his business, after paying the operation expenses, of over $9,000 a year. * * * the right to use the patio and have music therein is of a value in excess of $5,000 per year. Taking into consideration the volume of the relator’s business and the volume of the business derived from the use of the music as an added attraction would in our opinion make the restricted right sought to be enjoined herein of a value in excess of $2,000. * * * ”
The plaintiffs in Johnson v. Nora, supra, sought to enjoin the defendant from operating a dance hall, etc. The Supreme Court declined jurisdiction of the case since there was no affirmative allegation or proof that the value of the thing in controversy, i. e., the right to operate the business, was in excess of $2,000.
In Ragusa v. American Metal Works, Inc., supra, plaintiffs prayed for an injunction prohibiting defendant from operating its metal working establishment. The record did not show affirmatively that the right in controversy was more than $2,000, and the case was transferred to the Court of Appeal.
It clearly appearing that the value of the right in contest is more than the sum of $2,000 and exceeds our maximum jurisdiction, we cannot take cognizance of or adjudicate upon the appeal. LSA-Const. 1921, Art. 7, '§§ 10, 29.
Pursuant to the authority vested in this court by LSA-R.S. 13:4441,
It is now ordered, adjudged and decreed that the appeal in this cause be transferred to the Supreme Court, provided that the proper record be filed there within sixty days from the date this judgment becomes final and effective; otherwise the appeal shall stand as dismissed. Appellants are cast for the costs of this court.
Appeal transferred to the Supreme Court.
Dissenting Opinion
(dissenting).
I entertain grave doubts relative to the legality and the wisdom of transferring this case to the Supreme Court.
I am of the opinion that simple justice required us to remand it to the District Court for the introduction of additional evidence.
The proposed unsigned lease which is in the record, all litigants have conceded, is not the lease which was actually executed between the New Orleans Pelicans, Inc., and the New Orleans City Park Improvement Association. Therefore, in order to adequately pass upon either our jurisdiction of the case or the legality of the lease, it is imperative that we have evidence of the document which was executed between the New Orleans City Park Improvement Association and the New Orleans Pelicans, Inc., in the record; otherwise we are merely guessing at both the jurisdiction of this court and the nature of the transaction, which, of course, is not one of the functions of a court of justice.
On remand of the matter, the document in question and other pertinent evidence would be offered to make the record complete for decision by the appellate court having jurisdiction, and thus innumerable delays would in my opinion have been avoided.
This case has posed for our consideration very far reaching problems of public interest which may only be solved when the record completely reflects the nature thereof.
An example of one of the problems involved may be illustrated by the following questions which have been posed for our consideration:
May a stadium dedicated for public use be leased for six months to a private business in order to further its own profitable interests?
Or to pose the question from another aspect:
May the ABC Corporation which is engaged in the motion picture business lease the municipal auditorium, which is likewise dedicated to the public use, for a period of six months for a the-atre in furtherance of its own business interests in which it is primarily engaged for profit?
An appellate court may only endeavor to answer these questions when the evidence of the actual transaction which occurred between the New Orleans City Park Improvement Association and New Orleans Pelicans, Inc. is before it.
