
    (47 South. 532.)
    No. 17,036.
    ROJAS & CONNER v. SEEGER et al. Appeal of CLAUDEL.
    (June 30, 1908.
    On the Merits, Nov. 4, 1908.)
    1. Appeal and Error (§ 595*) — Filing Transcript-Filing by One Appellant Inuring to Benefit oe Other.
    Where the transcript of appeal is filed in the Supreme Court, the clerk cannot be required to issue a certificate to the appellees that the record has not been brought up by one of the appellants. As a general rule, the filing of the transcript by one of two appellants inures to the benefit of the other, and where the record is brought up the remedy of the appellees is by motion to dismiss.
    - [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2623; Dee. Dig. § 595.*]
    On Motion to Dismiss Appeal.
    2. Appeal and Error (§ 611*) — Dismissal-Abandonment.
    Where two defendants, having diverse interests, are condemned by the same judgment and granted appeals, returnable at the same time, and one of them obtains an extension of time for making his return, and files a transcript for his own account within the delay allowed, but the other asks for no extension and files no transcript, the appeal of the latter will be dismissed as abandoned.
    [E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2691; Dec. Dig. § 611.*]
    On the Merits.
    3. Landlord and Tenant (§ 42*) — Leases and Agreements — Construction and Operation.
    Where one becomes the lessee by written instrument of the “lower floor,” or part of the “lower floor,” of a building, he commits himself to a recognition of the fact that there are as many upper floors as in truth exist; and where he knows that they are, or are intended to be, occupied by other tenants an'd is silent upon the subject, he further recognizes and consents that his lease does not include the privileges or appurtenances necessarily or properly included in or pertainingi to the lease of the floors above him, and the'nature and extent of such privileges and appurtenances become a proper subject of inquiry dehors the instrument relied on by him.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 106; Dec. Dig. § 42.*]
    4. Landlord and Tenant (§ 124*) — Leases and Agreements — Estoppel.
    Where, during the negotiations leading to a written contract of lease of the lower floor of a building, and after the contract has been sign-od and the lessee has installed himself, particular requests are made and granted, but nothing is said as to the arrangement of the entry to the stairway leading to the floors above, or as to the space about such entry reasonably occupied by the upstairs tenants for the display ,of their signs and -wares, it -will be presumed that the lessee of such lower floor acquiesced in considering the condition then existing as appurtenant to the lease of the upper floors, and he cannot be heard afterwards to assert that his lease entitles him to have such condition changed, nor can he successfully demand a diminution of his rental. He must, in such ■case, and quoad the question presented, be held to have acquired possession of all that his lease calls for.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 438; Dec. Dig. § 124.*]
    .5. Landlord a-nd Tenant (§ 130*) — Possession os’ Tenant — Disturbance — Call in Warranty.
    Where a lessee is sued by a third person, .claiming part of or a servitude on the thing leased, or which he alleges is leased, to him, it is his privilege to call his lessor in warranty, .and it is error to dismiss such call on an exception of no cause of action. A judgment to that effect must therefore be reversed, no matter what may be the inference arising from the subsequently rendered judgment of the trial court as to the final result in this court upon the hearing of the case on the merits.
    [Ed. Note. — Por other cases, see Landlord and Tenant, Dec. Dig. § 130.*]
    (Syllabus by the Court.)
    Appeal from Civil District Court, Parish ,of Orleans; George Henry Théard, Judge.
    Action by Rojas & Conner against Gustave-Seeger and Edward Claudel. Judgment for plaintiff against both defendants, and dismissing the call in warranty made by defendant Claudel on his codefendant, Seeger, and both defendants appeal, and Claudel also appeals from the judgment dismissing his call in warranty.
    Judgment dismissing the call in warranty reversed, and cause remanded, and the judgment in favor of plaintiff affirmed.
    Prank Edward Rainold, for appellant See-ger. James Joseph McLoughlin, for appellant Claudel. Lazarus, Michel & Lazarus, for .appellees.
   LAND, J.

Plaintiffs and appellees have, fuled the clerk of this court to show cause why he should not issue a certificate that the record has not been brought up by Gus-tave Seeger, one of the appellants.

The response is that the record has been brought up, and that appellees’ remedy, if any, is by motion to dismiss.

Both defendants appealed from the judgment in favor of the plaintiffs. Claudel also appealed from the judgment .overruling his call in warranty against Seeger, his code-fendant. Claudel filed one transcript covering both of his appeals. The appeal on the call in warranty does'not concern the plaintiffs. Claudel and Seeger are appellants from the same decree, and it was not necessary for Seeger to file a separate transcript. Succession of Tuzanne, 36 La. Ann. 420.

Plaintiff’s remedy, if any, was by motion to dismiss; it Being obvious that the clerk of this court cannot certify that the record has not been brought up, when the transcript is on file and the case is on the docket of this court.

It is therefore ordered that the rule sued out herein- be dismissed, at the cost of the movers.

Statement of the Case.

MONROE, J.

Defendant Seeger, being the lessee of a three-storied building, bearing the numbers of 916 and 918 Canal street, in May, 1904, by verbal contract subleased the' upper floors to plaintiffs, who are photographers, until October 1st of that year, with the understanding that a further lease would then be made. There appears to have been (and to be) no means of access to the upper floors of the building save a stairway, the foot of which is a few feet back from the property line of Canal street, and which runs up against the side of what, for convenience, will he called the west wall. The municipal numbers, it may be remarked, run from east to west, so that the- stairway is on the 918 side of the building.. The building is supported, as we infer, on the front line, by four pillars — one at each comer, and two equidistant from each other and from the corner pillars; the space between the two central pillars having been, at that time, entirely occupied by a show window. Plaintiff, in going into possession, desired to use the pillar at the west corner and the front and west sides of the next one (to the east) for the display of their photographs, and to improve and individualize the entrance to their establishment by placing an ornamental door at the foot of the stairway and converting the space between the door and the property line and between the pillars last mentioned into a sort of vestibule, and, with the concurrence of Seeger, who paid part of the expense, that was done; the two pillars being converted into, or partially surrounded by, showcases, and a partition, running off first at an angle, and then straight out, from the foot of the stairway to the eastward pillar, being constructed, with a door opening through it into the store on the ground floor occupied by Seeger. That being the situation, a written lease was entered into on September 16th, to run for three years, from October 1, 1904, at $1,300 per year, payable in monthly installments; the property leased being described as “the second and third floors, known as 916 and 918 Canal street, * * * together with all the improvements situated thereon,” and as “the said premises and appurtenances,” and the lease containing the stipulation:

“Lessor agrees to extend this lease, under same conditions, as l'ong as he and his successors continue to control renting of said premises. Lessee to pay pro rata for increase of rents, should this occur.”

The lease so made was not recorded, and, so far as appears, was not extended or renewed until May 1, 1907, when a new contract was entered into for 36 months, from the lst-of the preceding October, upon “same conditions as former lease, with the exception of the amount of rent,” which was fixed at $150 per month.

In the meanwhile the other defendant, Claudel, had been negotiating with Seeger for the sublease of part of the first (or ground) floor, which the latter himself was occupying, and, seeing the position of the stairway, the vestibule, the showcases in which plaintiffs were displaying their wares, and the show window between the two middle pillars, offered to lease part of the space in question at a certain price, and put up the necessary partition at his own expense, if Seeger would remove the show window so as to afford a wider opening for the whole establishment, and the offer so made was accepted by Seeger, save that he voluntarily agreed to take less than Claudel offered for no other reason, as Claudel himself testifies, than that his own rent had been reduced. A written instrument, evidencing the lease, which was to begin on October 1st following, was executed on March 18, 1907, and recorded the next day. Claudel was,- however. allowed by Seeger to erect his partition and otherwise install himself some time before the 1st of October, and had been in actual possession for several weeks, when it occurred to him (apparently for the first time, as the subject had never before been mentioned) that he needed the pillar next to that at the west corner of the building, and about which plaintiffs had their showcase, for the display of his goods, and that under his lease he was entitled to it. On October 2d, therefore (through his attorney), he addressed a letter to plaintiffs, notifying them that he was the lessee of “12 feet of the ground floor of 918 Canal street,” that he found that they were occupying a portion of the space with a showcase, and that, unless they removed the showcase “by to-morrow, by noon,” he would remove it at their expense. This letter led to some correspondence and interviews, in which all of the litigants participated, but without satisfactory result. Seeger was anxious to reconcile matters, and offered to pay first one and then the other of his subtenants a considerable bonus if either would get out, and, not accomplishing anything in that way, he offered to let Claudel have the pillar nearer to the east end of the building for'showcase purposes, of which offer Claudel availed himself, without, however, as it appears, abating his demands with respect to the other pillar. And so, being unwilling to concede the demands made on them and being threatened on one side by Claudel and on the other by Seeger, plaintiffs brought this suit, asking that both parties be enjoined from disturbing their vestibule, or from obstructing in any way the full and free exhibition of their work, displayed in the showcases forming part thereof, and that the right to the use of said vestibule and showcases be recognized as resulting from their lease.

Claudel answered, setting up his lease from Seeger, and alleging that when it was made he knew nothing of any lease between Seeger and plaintiffs; that his lease calls for “12 feet of the lower floor of the building No. 916 Canal street towards the lake”; that plaintiffs are occupying a portion of that space, and that he is entitled to be put in possession of it. He alleges damages as the result of the injunction, and prays that the writ be dissolved and that there be judgment recognizing his right to the possession of “the upper portion [that is, the portion towards the lake] of the lower floor of the building No. 916 Canal street, in this city; said portion being in width twelve feet, and in depth the full length of said building, together with the use of the yard in the rear,” etc. “He further prays that Gustave Seeger be cited in warranty,” and that there be judgment reducing his rent whilst he is kept out of p>os-session of the property leased by him, and condemning Seeger and plaintiffs, and the surety on plaintiffs’ injunction bond, in sol-ido, in the sum of $250 for attorney’s fees, and against plaintiffs and their surety in the sum of $2,500 as damages otherwise sustained. Seeger filed exceptions to the call in warranty, and the exception of no cause of action was sustained, and the call dismissed. Answering to the demand of the plaintiffs, Seeger says that they failed to pay their first rent note, falling due October 31, 1907; that it was protected for nonpayment, and that he notified them that their lease was canceled and requested them to vacate the premises; that they afterwards paid the note, but have failed to move out; and he prays for judgment rejecting their demands, canceling their lease, and restoring him to the possession of the premises occupied by them. There was judgment on the merits in favor of plaintiffs, perpetuating the injunction sued out by them “at the cost of the defendants,” and rejecting Seeger’s demand for the cancellation of their lease. Claudel and Seeger obtained orders of appeal, and some time prior to the return day Claudel, through his counsel, obtained an order from this court extending the time for the filing of the transcript, the extension (to quote the language of the order) “to cover both appeals herein taken by mover” (that is to say, the appeals from the judgments dismissing the call in warranty and on the merits); but Seeger obtained no such order and the transcript upon which the case is to be decided was filed by Claudel as “Appeal of E. Claudel.”

Opinion — On Motion to Dismiss Appeal.

In view of the failure of Seeger to file a transcript, plaintiffs ruled the clerk of this court to show cause why he should not issue a certificate “that the record has not been brought up”; but it was held by the court (inter alia) that:

“Plaintiff’s remedy, if any, was by motion to dismiss; it being obvious that the clerk of this court cannot certify that the record has not been brought up, when the transcript is on file and the case is on the docket of this court.”

Plaintiffs now move to dismiss Seeger’s appeal, on the grounds that be abandoned it by failing to file the transcript as required by law, and that, if he has filed a transcript, he has done so after the return day fixed in the order granting the appeal and without obtaining an extension of time for that purpose. The motion must prevail. Claudel and Seeger occupied wholly different relations to plaintiffs, were condemned on wholly different- grounds, and had really no interest in common. Each might have appealed without the other, or neither might have done so. Each having appealed, either was at liberty to abandon his appeal, if he thought proper, and the prosecution of his appeal by one has no bearing on the abandonment of his appeal by the other. What might have been the effect, as to Seeger, of the filing by Olaud-el of the transcript within the delay originally granted to him (which, as it happens, was the same as that originally granted to Seeger), need not be considered, for no transcript was filed within such delay, and if nothing had been done by either, the appeals of both would have been considered abandoned. Olaudel, however, before the expiration of the original delay, applied for and obtained an extension of time, and within the extended delay filed a transcript, indorsed “Appeal of E. Claudel.” Seeger applied for no extension of time, none was granted, and, as no appeal thereafter lodged in this court by him could have been considered, still less can the appeal thereafter lodged here by Olaudel, not on behalf of Seeger, but on his own behalf, be considered as inuring to the benefit of Seeger. The appeal of 'Gustave Seeger is therefore dismissed.

On the Merits.

It appears, from the facts stated, that Claudel is in possession, not only of all the space he expected to get when he made his contract with Seeger, but, for the purposes of his showcase, of the third pillar from the west side of the building, which was hot within the contemplation of his contract. It also appears that the right was conceded to him to put a showcase on the east side of the pillar, about which this litigation has arisen (being the second one from the west side of the building), and the plaintiffs were further willing to concede to him a portion of the space in their showcase on the front of the same pillar. His position, however, is that, as his lease calls for 12 feet, and plaintiffs’ lease was not recorded when his was entered into, he was not, and is not, bound to take notice of their rights (as against Seeger) or of Seeger’s obligation to them, and that he can oust them from, and compel Seeger to put him in possession of, space which, at the date of his lease, apparently and in fact was beyond the control of Seeger and in the possession of plaintiffs, and so remained for months afterwards. It is undisputed, however, that long before Olaudel spoke to Seeger about leasing from him he was familiar with the property, and knew as well of the existence of plaintiffs’ vestibule and showcases as he did of the stairway and pillars. And yet neither during the negotiations which preceded the making of his lease, nor during the interval between the signing of the lease (in March) and his going in possession (in September), nor during the several weeks prior to October 1st, when he was installing his partition and fixtures, did he ever suggest that any of the space occupied by plaintiffs was included in that for which he was negotiating and contracting, and into the possession of which he entered after his contract was made. He himself testifies that the only thing he asked of Seeger was the opening of the space between the second and third pillars by the removal of the show window, 'arid he admits that Seeger not only granted' the request, but that he voluntarily agreed' to take less for the place than lie (Claudel) had offered him, because his (Seeger’s) rent had been reduced, and, when the present trouble arose, accorded to him (Olaudel) the privilege of using the third pillar, to which he had made no claim, for the purposes of a showcase.

The learned judge of the district court was of opinion, and so held, that “the right of entrance and access to the upper floors being undoubted, and the lease” (to Claudel of 12 feet of the lower floor) “being silent thereon, the extent of the right, and what was included therein, were legitimate subjects of inquiry outside of the lease,” and that the result of such inquiry was to satisfy his mind that there is no conflict between the leases, and that Claudel “is in full possession of the entire premises leased by him.” Wp are of the same opinion. When Claudel leased “the lower floor of the building No. 916 Canal street,” he committed himself to a recognition of the fact that there were as many upper floors as in truth existed, and knowing, as he did, that they were, or were intended to be, occupied by other tenants, and that aerial navigation has not so far been applied to practical uses as to justify any assumption to the contrary, he further recognized and consented, as we think, that the lower floor was necessarily subjected to something in the nature of servitudes in favor of such upper floors and their occupants. It was, therefore, as though he had in terms agreed that his lease should not include the rights, privileges, or appurtenances, necessarily or properly included in the lease of the floors above him, leaving the specification of their character to be supplied, in case of dispute, by evidence dehors his lease as to the understanding between him and his lessor on the subject, or as to facts, knowledge, and conduct from which such understanding might fairly be presumed.

As to the understanding, it appears, from his own admission, that he knew the plaintiffs personally; knew that they were, and had béen, occupying the upper floors in question, as tenants, engaged in the business of photography; that as necessarily or reasonably appurtenant to their photograph gallery they required the stairway as a means of access and egress, and some space at the street entrance for advertising purposes; that he was perfectly familiar with the condition which, as a matter of fact, had been established as between plaintiffs and their common lessor, and entered into his lease, not only without making any objection, but impliedly consenting thereto, and thereafter confirmed what he had done by asking and accepting a concession which he could not reasonably have asked, and which, in all probability, would not have been granted, if it had been supposed by any one that he was entitled, under his lease, to that which he is now insisting on. These facts, we think, justify the conclusion, reached by the judge a quo, that “he is in full possession of the entire premises leased by him,” and “that his lease is not in conflict with that of plaintiffs.” If it be not so, and if the theory propounded on his behalf be accepted, he would be entitled to more than he asks, and if, under the same lease, he were on the ground floor of an office building, towering to the sky, he would be entitled to' close the stairways, stop the elevators, prohibit the use of the fire escapes, and remove the directory displaying the names of the upstairs tenants.

We are, however, unable to concur in the view that Claudel’s call in warranty should have been dismissed on exception. He was sued, as a tenant, by one claiming part of, or a servitude upon, the thing which he alleges was leased to him, and it was his privilege to call his lessor in warranty and make out against him the best case that he could. Civ. Code, 2704. Being denied that privilege, and the lessor being eliminated by the judgment dismissing the call (save in so far as he is an appellee therefrom), the inference that no judgment on the merits could, in any event, be rendered against him, was premature, since it was predicated upon the judgment of the district court thereafter to he rendered, and of this court, which is yet to be rendered, and such inference cannot he considered a substitute for the judgment for or against him, which the appellant was and is entitled to demand.

It is therefore ordered, adjudged, and decreed that the judgment of January 15, 1908 (signed January 21, 1908), dismissing the call in warranty made by the defendant, Claudel, ■on his codefendant, Seeger, be avoided and reversed, and the case, with respect to such ■call, be remanded to the district court, t.o be there proceeded with according to law and to the views herein expressed; the costs of the appeal, in so far as said judgment is concerned, to be paid by defendant Seeger, and those of the district court to await the final judgment thereon. It is further adjudged and decreed that the judgment of February 24, 1908 (signed February 28, 1908), on the merits, be affirmed, at the cost of the appellant, E. Claudel.

BREAUX, O. J., concurs,  