Opinion
No. 30313.
December 2, 1929. On the Merits June 2, 1930.
Appeal from Seventeenth Judicial District Court, Parish of Lafourche; Robert B. Butler, Judge.
Summary proceeding by Frederick Scully against Pierce Bouvier and another. From a judgment for plaintiff, defendants appeal, and plaintiff moves to dismiss the appeal.
Motion to dismiss overruled, and judgment affirmed.
See, also, 169 La. 825, 126 So. 205.
Harvey Peltier, of Thibodaux, for appellants.
Howell Deramee, of Thibodaux, for appellee.
This is a summary proceeding to evict a tenant, on the allegations, first, that the contract of lease has terminated, and, in the alternative, that the contract was violated by the lessees. The suit was brought under the provisions of section 2155 of the Revised Statutes, as amended and re-enacted by Act No. 55 of 1926, p. 68. The court gave judgment for the plaintiff, and the defendants have taken a suspensive appeal from the decision. The condition stipulated in the appeal bond furnished by the appellants is that they shall prosecute their appeal and shall satisfy whatever judgment may be rendered against them. The bond was made in conformity with article 579 of the Code of Practice, which prescribes the conditions of an appeal bond in an ordinary proceeding. The conditions of a suspensive appeal bond for an appeal from a judgment of eviction, in a summary proceeding under section 2155 of the Revised Statutes, are prescribed in section 2157, which requires the bond to be given as "security for all such damages as the appellee may sustain." The appellee in this case, therefore, filed a motion to dismiss the appeal for want of a valid appeal bond. In their brief filed in opposition to the motion to dismiss the appeal, the appellants invoked the provisions of Act No. 112 of 1916, p. 241; the ninth section of which act declares that no appeal shall be dismissed on account of any error in the amount of the bond, or for any inaccuracy or omission in the bond, or for insufficiency of the surety or sureties on the bond, until the party furnishing such bond shall have failed to correct the error, inaccuracy, or omission, or to furnish a new or supplemental or additional bond, as provided in the statute. The third section of the act requires that a complaint of the insufficiency of an appeal bond, "either as to form or substance," shall be made in the court of original jurisdiction, and allows the appellant two days, after service of the notice of such complaint, in which to furnish a new or supplemental or additional bond.
Our opinion is that the act of 1916 protects the appeal against dismissal in this case, even though the conditions stipulated in the appeal bond are not in conformity with the statute on the subject.
In the case of Doullut v. Rush et al., 142 La. 443, 77 So. 110, cited by counsel for appellee, it was held that the defendants were not entitled to a suspensive appeal, but were entitled only to a devolutive appeal, from the judgment evicting them from the leased premises, and that the Act No. 112 of 1916 did not protect the appeal in that respect. The appeal bond in that case was given in conformity with article 579 of the Code of Practice, instead of section 2157 of the Revised Statutes; but the reason why the act of 1916 did not protect the appeal, as a suspensive appeal, was that the appellants had failed also to comply with another condition, on which alone, according to that section of the Revised Statutes, they could have taken a suspensive appeal; that is to say, they had failed to file a special defense in the court of original jurisdiction, supported by their oath that all of the facts stated in their answer to the suit were true. The decision in that case is therefore not appropriate to this case.
The appellant, after filing his motion to dismiss this appeal, filed his complaint in the district court, contending that, inasmuch as the appeal bond was not valid, the court had not lost jurisdiction of the case. On the next day after the notice of the complaint was served upon the attorneys for the defendants, they filed a suspensive appeal bond, conforming with the requirements of section 2157 of the Revised Statutes — protesting, however, that the appeal bond which they had filed theretofore was a valid appeal bond. The ruling which the district judge then made is complained of in another proceeding now pending on a writ of certiorari ( 169 La. 825, 126 So. 205); as to which we express no opinion at this time. It is sufficient to say that, according to the provisions of Act 112 of 1916, the motion to dismiss the appeal, which we are now considering, must be overruled.
The motion to dismiss the appeal is overruled.
On the Merits.
This is an action to eject a tenant under the provisions of Act No. 55 of 1926. There was judgment for plaintiff and defendants appeal.
I.
The lease was for trapping purposes. Plaintiff claims that the lease had expired, or, in the alternative, that the terms thereof have been breached by the defendants. There is much testimony on the subject whether or not the lease was for three years or only one year. But we find it unnecessary to consider this, since plaintiff virtually admits that the lease was for one year with privilege of renewal for another year if defendants complied with the terms for the first year, and with privilege of renewal for a third year if defendants complied with the terms for the second year. And, since we find as a fact that defendants did not comply with the terms of the lease at the end of the second year, it is immaterial whether such failure on the part of defendants be treated as a breach of the lease or as a forfeiture of the right to renew; for in either case the defendants must surrender the leased premises.
II.
It is admitted that the lessees (defendants) were to pay the lessor (plaintiff) 60 per cent. of the amount paid to the lessees by the trappers. This amount was paid for the first two years, and is not in dispute.
The trial judge found as a fact, and we agree with him, that the lessees assumed the obligation to police the lands and keep off trespassers. For the latter purpose it became necessary to obtain an injunction against certain persons, and the cost of this injunction in attorneys' fees and costs was $625, which defendants refused to pay, claiming that these costs were due by plaintiff alone.
We also find as a fact that defendants agreed to pay plaintiff 40 per cent. of the buyer's commission which they were to receive. This commission amounted to $1,100; but the defendants refused to pay plaintiff the $440 due thereon.
The district judge has given exhaustive reasons for finding as a fact that defendants agreed to police the lands and pay the legal costs thereof. It would serve no useful purpose to repeat those reasons here. Suffice it to say that defendants admitted to the attorneys employed for that purpose that they were liable for the bill and would have to pay it. Their alleged reason for doing so does not impress us. They claim that they made these representations in order to favor plaintiff by having the bill reduced, if possible. And the fact is that they did pay without protest the other costs of policing and posting the grounds, without claiming reimbursement from plaintiff.
The district judge did not pass upon the question of buyer's commissions. But our conclusion is that defendants agreed to pay them to plaintiff. Otherwise we see no reason why defendants should have furnished plaintiff with an account of said commissions (amounting to $1,100, Tr. 21) and an account of the costs which they claimed a right to charge against it.
It is true that in the end, after first refusing to do so, defendants finally offered, as a compromise, to pay practically the whole of the attorneys' fees of $600, but they never did offer to pay, and always refused to pay, the 40 per cent. of the buyer's commission.
Our conclusion agrees with that of the district judge, that plaintiff is entitled to possession of the leased premises.
Decree.
The judgment appealed from is therefore affirmed.