157 F.2d 828 | 5th Cir. | 1946
Appellant, as petitioner below, instituted proceeding in November, 1943, to condemn, for its use in connection with the Orlando
“ * * * that the nature, character and extent of the leasehold estate created by Exhibit ‘A’ hereto attached was the same estate as is now sought to be acquired by the above-entitled proceedings.
“That at all times between April 1st, 1942 and the filing of the petition herein, on November 18th, 1943 and to the date hereof, the petitioner has continued in the uninterrupted possession of said lands described * * * in said petition.”
The court overruled the motion to strike in a written opinion holding that petitioner was not entitled to proceed by way of condemnation for a renegotiation of the contract price. The court said:
“ * * * it affirmatively appears that petitioner by this proceeding seeks to do nothing more than bring about a re-negotiation of the ‘contract price’ for the property in question. Petitioner seeks no different estate in the property than was granted to it by the lease, under which terms petitioner entered into and was in possession of the property at the date of the filing of this petition in this case.”
Thereupon, appellees moved for a summary judgment, under the pleadings stipulation, and opinion of the court, in the sum of $5,347, the amount of the rental reserved in the lease, accrued and payable on June 30, 1944. On April 14, 1945, a divisible judgment on the motion was entered. It decreed:
“1. That the relief sought by the petition of the Petitioner praying for the condemnation of the leasehold interest is hereby denied.
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“3. It is declared that the lease described in the answer, and copy of which is attached to the stipulation marked Exhibit ‘A’, was in full force and effect, at the commencement of this action, and will remain
“4. The defendants, McCrory Holding Co., and The’ First National Bank at Orlando, as Executor of the Estate of John H. McCullough, deceased, do have and recover from the Petitioner the sum of $5,-347.00 as rent under said lease from July 1, 1943, to June 30, 1944, and interest thereon at the rate of 6% from the date of this judgment until paid.”
Notice of appeal from said judgment was filed on July 13, 1945 ; on December 12, 1945, this Court dismissed the appeal “for failure [of appellant] to file the transcript of record * * * within the return day.” On December 29, 1945, appellant filed in the court below, in the same proceeding, a motion to vacate the judgment rendered on April 14, 1945, on the ground that the judgment was void as a matter of law for the reasons (1) that the court was without authority to inquire into and limit the right of the Government in condemnation proceedings, and (2) that the court was without authority to adjudicate a claim against the Government with respect to which the Government has not consented to be sued. From a judgment denying this motion, appellant prosecuted this appeal.
The question presented is whether the district court had jurisdiction in a condemnation proceeding to enter a judgment against the United States, denying condemnation of the interest sought and holding the United States liable to defendants under a contract of lease.
It will be observed that when the condemnation proceeding, which resulted in the judgment against appellant, was being heard and considered by the court below, the parties agreed that the lease, under which the Government had gone into possession of the premises, was the same estate sought to be acquired in the condemnation proceeding. Appellant contended that its failure to give appellees notice of its intention to renew the lease for the term beginning July 1, 1943, and ending June 30, 1944, terminated the lease, and that thereafter it remained in possession of the land as a tenant at sufferance and could condemn a greater estate in the land.
The court below had judisdiction of the condemnation proceedings. 40 U.S.C. A. § 257. Having jurisdiction, it had the authority to inquire into and to determine the question before it. An inquiry into whether appellant was vested with the right to condemn is quite different from an inquiry into the necessity of taking and the extent of title to be taken, with respect to which authority to act for military purposes is vested under the congressional acts
The term of the court below at which the judgment was entered ended on the 20th day of September, 1945. 28 U.S. C.A. § .149, Act of Aug. 25, 1937, Ch. 763, § 1, 50 Stat. 800, Ex Parte Harlan, C.C.N.
That part of the judgment, however, awarding a money judgment against the United States for the annual rental fixed in the rent contract concerned a question with which the court below was not vested with jurisdiction. The Government may not be sued without its consent,
The judgment appealed from, to the extent that it denied appellant’s motion to va-
cate and set aside the judgment of April 14, 1945, denying to appellant the right to condemn a leasehold estate in the lands described in its petition, is affirmed. To the extent that it denied the motion to vacate the money judgment against the appellant, the judgment is reversed, and the cause is remanded for further proceedings not inconsistent with the views herein expressed.
Affirmed in part; reversed and remanded in part.
The lease for a term beginning April 1, 1942, and ending June 30, 1942 provided:
“This lease may, at the option of the Government, be renewed from year to year at a rental of Five Thousand Three Hundred Forty-Seven Dollars ($5,347.00) per annum. * * * and otherwise upon the terms and conditions herein specified, provided notice be given in writing to the Lessor at least thirty (30) days before this lease or any renewal thereof would otherwise expire: Provided that no renewal thereof shall extend the period of occupancy of the premises beyond the period of six months after the termination of the National Emergency.
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“The Government shall pay the Lessor for the premises rent at the following rate: $5,347.00 per annum or at a pro rata basis for lesser periods, it being agreed and understood that this lease shall be construed as creating a tenancy for only such period of time as the premises shall be actually occupied by the Government. It is further agreed and understood that the Government shall have the right to terminate this lease or any renewal thereof at any time upon giving the Lessors 30 days’ advance notice in writing.”
Appellant cited United States v. 6.74 Acres of Land in Dade County, Fla., 5 Cir., 148 F.2d 618.
In the court below appellant’s counsel frankly stated that he doubted the right of appellant to condemn an estate identical with the estate then had; but he contended that the conventional lease had termina-ed by failure of the appellant to give notice of renewal thirty days prior to June 80, 1943; hence that the Government had no lease at the time of the filing of the condemnation suit.
The acts relied upon by the Government appear in 50 U.S.O.A. §§ 171 and 171a.
United States v. Shaw, 1939, 309 U.S. 495, 500, 60 S.Ct. 659, 84 L.Ed. 891; United States v. U. S. Fidelity Co., 1939, 309 U.S. 506, 514, 60 S.Ct. 653, 84 L.Ed. 894.
24 Stat. 505, Judicial Code, § 24 (20), 28 U.S.C.A. § 41 (20).
N. Y. Telephone Co. v. United States, 2 Cir., 1943, 136 F.2d 87, 88; Moody v. Wickard, 1943, 78 U.S.App.D.C. 80, 136 F.2d 801, 803, 804, cert. denied 320 U.S. 775, 64 S.Ct. 89, 88 L.Ed. 465; United States v. Shingle, 9 Cir., 1937, 91 F.2d 85, 89, cert. denied 302 U.S. 746, 58 S.Ct. 264, 82 L.Ed. 577; United States v. John Ii Estate, 9 Cir., 1937, 91 F.2d 93, 94, cert. denied 302 U.S. 746, 58 S.Ct. 264, 82 L.Ed. 577; Carlisle v. Cooper, 2 Cir., 1894, 64 F. 472, 476; Cf. United States v. Sherwood, 1941, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058.