Consumers' Fertilizer Co. v. City of Shreveport

Supreme Court of Louisiana

Consumers' Fertilizer Co. v. City of Shreveport

105 So. 415, 159 La. 415, 1924 La. LEXIS 2267

CourtSupreme Court of Louisiana

DecidedApril 21, 1924

DocketNo. 26494.

StatusPublished

This text of 105 So. 415 (Consumers' Fertilizer Co. v. City of Shreveport) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Consumers' Fertilizer Co. v. City of Shreveport, 105 So. 415, 159 La. 415, 1924 La. LEXIS 2267 (La. 1924).

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Opinions

BRUNOT, J.

This is a suit against the city of Shreveport for $2,7§0, with legal interest thereon from judicial demand.

The plaintiff leased 1.03 acres pf land, in the city of Shreveport, from A. J. Newman, for a term of 10 years beginning October 20, 1907. The leased property belonged to the community existing between A. 'J. Newman and his deceased wife, Mrs. Elizabeth B. Newman and the lease was made ¡Subject to the ratification of her heirs. It was stipulated in the lease .that all buildings and machinery placed upon the leased property by the lessee should remain its property, wiéh the right to remove the same from the leased premises at the termination, of the lease. There was no formal ratification of this lease by any of the heirs of Mrs; Newman, deceased. Before the expiration of the lease it was renewed upon the same terms and conditions for five years, from October 20, 1917, to October 20, 1922, and all of Mrs. Newman’s heirs formally ratified the renewal thereof.

The lessee erected certain buildings .upon the leased premises and sublet these buildings to various tenants,, one of whom was the defendant, city of Shreveport. Mr. A. J. Newman died before the expiration of the term of the renewal of the lease, and after the termination thereof plaintiff continued to occupy the land under an agreement with the attorneys of the heirs until January 6, 1923, at which time it was sold to effect a partition of the estate. At the partition sale Mr. J. E. Peyton purchased the land and notified the tenants thereof that all rent thereafter must be paid to him. During the month of August of the same year plaintiff filed this suit for rent of the premises due by defendant for eight months from January i,.1923, to September 1, 1923, at $192.50 per month, the total amount of'rent due being $1,565, and also sued for $1,225, the sum necessary to pay the cost of rebuilding certain portions of one of the buildings which had been destroyed by defendant, city of Shreveport, during its occupancy thereof.

The defendant answered the suit and called J. E. Peyton in warranty. The warrantor filed his answer, the case was tried, and judgment was rendered in favor of the plaintiff and against the defendant, city of Shreveport, for $1,140, with 5 per cent, per annum *417 interest thereon from August 30, 1923, subject to a credit of $100, reserving to plaintiff the right to sue the defendant, city of Shreveport, for rent subsequently accruing, and dismissing all other demands of plaintiff. There was also a judgment in favor of the city of Shreveport and against J. E. Peyton, warrantor, for a like sum, interest, and all costs. From this judgment both the plaintiff and the city of Shreveport appealed. After the appeal was perfected J. E. Peyton wrote two letters to plaintiff. Both letters contain a demand upon plaintiff to remove the buildings from the said land. When the appeal was lodged in this court, plaintiff filed a motion to dismiss the appeal upon the ground of acquiescence in the judgment by J. E. Peyton, warrantor, the owner of the land and the alleged real defendant in the suit. It is true that the two letters referred to, and .upon which'the motion to dismiss is based, might be held to constitute acquiescence in the judgment on the part of J. E. Peyton, warrantor; but it does not appear that Peyton appealed from the judgment, and we do not think that his demand upon plaintiff to remove the buildings from his land can affect the right of the city of Shreveport to prosecute its appeal from a judgment rendered against it. It is not for us to say, at this time, that the rights of the city of Shreveport are fully protected by the judgment rendered in its favor and against the • warrantor, or that the city of Shreveport thereby becomes a mere nominal defendant without interest.

For these reasons, the motion to dismiss the appeal is denied.

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BRUNOT, J.

This is a suit against the city of Shreveport for $2,7§0, with legal interest thereon from judicial demand.

The plaintiff leased 1.03 acres pf land, in the city of Shreveport, from A. J. Newman, for a term of 10 years beginning October 20, 1907. The leased property belonged to the community existing between A. 'J. Newman and his deceased wife, Mrs. Elizabeth B. Newman and the lease was made ¡Subject to the ratification of her heirs. It was stipulated in the lease .that all buildings and machinery placed upon the leased property by the lessee should remain its property, wiéh the right to remove the same from the leased premises at the termination, of the lease. There was no formal ratification of this lease by any of the heirs of Mrs; Newman, deceased. Before the expiration of the lease it was renewed upon the same terms and conditions for five years, from October 20, 1917, to October 20, 1922, and all of Mrs. Newman’s heirs formally ratified the renewal thereof.

The lessee erected certain buildings .upon the leased premises and sublet these buildings to various tenants,, one of whom was the defendant, city of Shreveport. Mr. A. J. Newman died before the expiration of the term of the renewal of the lease, and after the termination thereof plaintiff continued to occupy the land under an agreement with the attorneys of the heirs until January 6, 1923, at which time it was sold to effect a partition of the estate. At the partition sale Mr. J. E. Peyton purchased the land and notified the tenants thereof that all rent thereafter must be paid to him. During the month of August of the same year plaintiff filed this suit for rent of the premises due by defendant for eight months from January i,.1923, to September 1, 1923, at $192.50 per month, the total amount of'rent due being $1,565, and also sued for $1,225, the sum necessary to pay the cost of rebuilding certain portions of one of the buildings which had been destroyed by defendant, city of Shreveport, during its occupancy thereof.

The defendant answered the suit and called J. E. Peyton in warranty. The warrantor filed his answer, the case was tried, and judgment was rendered in favor of the plaintiff and against the defendant, city of Shreveport, for $1,140, with 5 per cent, per annum *417 interest thereon from August 30, 1923, subject to a credit of $100, reserving to plaintiff the right to sue the defendant, city of Shreveport, for rent subsequently accruing, and dismissing all other demands of plaintiff. There was also a judgment in favor of the city of Shreveport and against J. E. Peyton, warrantor, for a like sum, interest, and all costs. From this judgment both the plaintiff and the city of Shreveport appealed. After the appeal was perfected J. E. Peyton wrote two letters to plaintiff. Both letters contain a demand upon plaintiff to remove the buildings from the said land. When the appeal was lodged in this court, plaintiff filed a motion to dismiss the appeal upon the ground of acquiescence in the judgment by J. E. Peyton, warrantor, the owner of the land and the alleged real defendant in the suit. It is true that the two letters referred to, and .upon which'the motion to dismiss is based, might be held to constitute acquiescence in the judgment on the part of J. E. Peyton, warrantor; but it does not appear that Peyton appealed from the judgment, and we do not think that his demand upon plaintiff to remove the buildings from his land can affect the right of the city of Shreveport to prosecute its appeal from a judgment rendered against it. It is not for us to say, at this time, that the rights of the city of Shreveport are fully protected by the judgment rendered in its favor and against the • warrantor, or that the city of Shreveport thereby becomes a mere nominal defendant without interest.

For these reasons, the motion to dismiss the appeal is denied.

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105 So. 415, 159 La. 415, 1924 La. LEXIS 2267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consumers-fertilizer-co-v-city-of-shreveport-la-1924.