Hennessey v. Puertas

WHITE, P. J. Plaintiff has appealed from an order of the superior court quashing a writ of execution, vacating and declaring void a purported sheriff’s sale under the writ, and denying plaintiff’s motion to strike certain affidavits filed by defendant. The question presented is whether the judgment under which the writ was issued is a judgment for the payment of money or merely a judgment declaratory of the rights of the parties under the terms of a lease.

Plaintiff in his complaint filed November 12, 1942, set forth the terms of a certain lease between plaintiff as lessor and one Miller as lessee, which lease was assigned to defendant, successor to the lessee. The lease contained the following provision:

“It is agreed by and between the parties hereto that Lessee may erect other buildings on said premises in addition to the frame building now situate thereon. If said buildings are to be erected and are to be used for financial gain, as distinguished from occupancy by Lessee or his agents for a dwelling, then it is agreed that the Lessor hereunder is entitled to an increase in the amount of rent; and if the parties hereto cannot agree upon the amount of increase then and in that event the amount shall be determined and fixed by the arbitration, the said Lessor and Lessee each appointing an arbitrator, and in case the two arbitrators so selected cannot agree, then John J. Hutchins, attorney at Law, Paso Robles, California, shall appoint a third arbitrator, and the decision of any two of the said arbitrators, delivered in writing to the parties hereto shall be conclusive evidence and binding upon the parties hereto.”

[153]Plaintiff further alleged that defendant erected improvements for use in his business and not as a dwelling; that plaintiff informed defendant that he had appointed an arbitrator to determine the increase in rent pursuant to the terms of the lease, but that defendant refused to appoint an arbitrator.

The prayer of the complaint was as follows:

“1. That this honorable court determine the rental value of said addition to the premises described herein as and from the 4th day of September, 1942, or that this Court appoint sufficient appraisers or arbitrators to determine the reasonable rental value of said addition.

“2. That this honorable court award this plaintiff an increase of rental in the amount found reasonable from September 4, 1942 to the termination of said lease.