#### NOEL ESTATE, Inc., v. LOUISIANA OIL REFINING CORPORATION.

No. 5372.

Court of Appeal of Louisiana. Second Circuit.

Oct. 30, 1936.

Dickson & • Denny, of Shreveport, for appellant.

Blanchard, Goldstein, Walker & O’Quin, Robert Roberts, Jr., and George Conger, all of Shreveport, for appellee.

HAMITER, Judge.

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 fiye 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 Monk-house 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 suggést in their brief that this court is without jurisdiction, ratione materias, 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., 149 La. 729, 90 So. 144; Carlock v. Kusin (La.App.) 167 So. 459.

*273The Louisiana Courts of Appeal are granted appellate jurisdiction, under article 7, section 29, Louisiana Constitution, of civil cases of which the district courts have exclusive original jurisdiction, and which are not appealable to the Supreme Court. Article 7 of section 10 of the Louisiana Constitution provides that the Supreme Court shall have appellate jurisdiction in civil suits where the amount in dispute or the fund to be distributed, irrespective of the amount therein claimed, shall exceed $2,000, exclusive of interest, except in certain named classes and kinds of cases. This case does not fall within any of the stipulated exceptions.

The above-mentioned phrase, “the amount in dispute,” according to the Supreme Court in the case of A. Baldwin & Co. v. McCain, 159 La. 966, 106 So. 459, 460, includes, within its meaning, the value of the thing in contest, where a thing, instead of an amount, is in dispute.

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 en: dure, 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. 19 of 1912, it is ordered that the appeal in this case be transferred to the Louisiana Supreme Court; that a period of 60 days is granted for the perfecting of the transfer, dating from the finality of this decree; and that on failure to make the transfer within that period the appeal shall stand dismissed.

Appellant shall pay the costs of this appeal, and all other costs are to abide the final disposition of the case.