Western Bldg. Co. v. J.C. Penney Co., 7155

• Decision Date: 13 December 1932
• Docket Number: 7155
• Citation: 245 N.W. 909,60 S.D. 630
• Parties: WESTERN BUILDING COMPANY, Respondent, v. J.C. PENNEY COMPANY, et al., Appellants.
• Court: South Dakota Supreme Court

60 S.D. 630

245 N.W. 909

WESTERN BUILDING COMPANY, Respondent, v. J.C. PENNEY COMPANY, et al.,

Appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Davison County, SD

Hon. Frank B. Smith, Judge

#7155—Reversed

Hitchcock & Sickel, Mitchell, SD

Attorneys for Appellants.

E.E. Wagner, Florence Ryan Ross, Mitchell, SD

Attorneys for Respondent.

Opinion Filed Dec 13, 1932

CAMPBELL, Presiding Judge.

Plaintiff owned a four-story brick building in the business section of Mitchell, S.D. The three stories above the main floor were constructed and have been used for office purposes. The main or ground floor was designed and constructed for occupancy by a bank and was so used and occupied by the Western National Bank until its closing some time in 1924.

The rear portion of the ground floor was divided into apartments or rooms suitable for small stores and a barber shop and was so occupied and used. In the basement were heating equipment, storage space, etc. In July, 1926, plaintiff leased to defendant J.C. Penney Company, the ground floor and basement of said building, excepting that portion of the basement reserved for the furnace room, coal storage, and barber shop, for a term of twenty years from and after July 1, 1926, at an annual rental of $5,400; defendant desiring and expecting to use the premises for the conducting of a retail merchandising business. To fit the premises for such use, extensive changes and alterations were necessary, including the installation of a modern store front and show windows, rearrangement and alteration of the elevator shaft and entrance and passageway thereto, change in the stairway leading to the upper floors, change in heating and plumbing systems, change in and removal of partitions, and various other matters. These changes and alterations, all with the consent and approval of plaintiff, were made by defendant at an expense of some $18,000 or $20,000 immediately upon the execution of the lease and before attempting to occupy the leased premises or conduct a business therein. Such changes and alterations having been completed, the Penney Company, installed its merchandise and fixtures and has henceforth conducted its retail business therein. Early in 1930 defendant company proposed to make further changes and alterations in the leased premises at an approximate expense of some $3,500, prepared plans and specifications for the work, and let a contract therefor to the defendant Bjodstrup, sole trader under the name of Pioneer Bridge Company. The defendant Bradley Young is local manager of the business of defendant J.C. Penney Company, at Mitchell. The contemplated alterations were for the purpose of accommodating the growth of the Penney Company’s business and improving and increasing space and facilities available for displaying and selling merchandise. The nature and extent of the intended alterations is fairly summarized in appellants’ brief as follows:

“First. The construction of an opening at the east end of the store room on the first floor just inside the east entrance for the purpose of making a passageway to the basement for the purpose of making the basement available for displaying and selling merchandise.

“Second. To remove the north and west partitions of the ladies’ rest room on the ground floor, which partitions are approximately 12 feet by 8 feet respectively, and to remove the plumbing and cement floor in said room, so as to make the space therein available for selling merchandise, and to replace the cement floor so removed with new wood to match the present floor in the sales room and to match the present walls with the rest of the sales room.

“Third. To construct a tile partition at a point 8 feet from the west end of the north basement to separate from said north basement a space to the west of said partition for unloading merchandise.

“Fourth. To lower the floor in the southeast corner of the basement by approximately 2 feet to the same level as the floor now in the north basement, excavating an area of about 23 square yards, to be finished with a 4-inch concrete basement floor, and the side walls supported by concrete walls, and to construct a tile partition to the ceiling of the basement.

“Fifth. To lay a sewer pipe under the basement floor from the southeast corner of the building in the excavated area, extending north into the north basement, then west in said basement to connect with the existing 4-inch sewer pipe leading to the sewer in the alley at the rear of the building.

“Sixth. To install in the southeast corner room of the basement two toilets and lavatories to connect with the sewer pipe referred to above, and to construct a vent not less than two nor more than four inches in diameter, as required by city ordinance, from said room upward at the southeast corner of the building to the roof.

“Seventh. To construct and install three hundred feet of additional radiation in the basement to make it available for use as a place for displaying and selling merchandise, and to remove two radiators on the first floor.

“Eighth. To finish said north basement and ladies’ rest room with metal ceilings, and protect all exposed retaining walls with concrete caps, and surface all walls with cement plaster, and decorating both rooms.”

After the letting of the contract to Bjodstrup and the performance of some of the work thereunder, particularly some of the excavating in the basement, plaintiff, not having .consented to the proposed alterations or changes, or any thereof, excepting as such consent might be derived through the terms of the lease which will hereinafter be discussed, and being unwilling that the same should be made, and claiming that defendant had no right to make the same, instituted the present action. The prayer of the complaint is for a permanent injunction against the making of the proposed changes and alterations and for the determination and assessment of plaintiff’s damage for the things already done pursuant to the 1930 contract with Bjodstrup, and that defendants be required to restore and replace all cement, earth, and other materials removed and restore the premises to the condition in which they were prior to the doing of any work under the 1930 alterations contract. Issue was joined, and the matter came on for trial before the court without a jury. It appears that the, learned trial judge, of his own motion; and not by mutual consent of counsel, made a personal inspection of the premises, and at the close of the testimony he stated, “Let the record show that the court has made a personal investigation of the premises and particularly of the basement where the work of making alteration is in progress.” He then proceeded to make an oral statement setting forth his general ideas and theories with reference to the case and some of the things he had observed on his visit to the premises, all of which presently emerges as about eight typed pages of the transcript indexed by the reporter under the heading “Opinion of the Court.” Findings and conclusions were thereafter made in favor of the plaintiff, and judgment was entered enjoining all the contemplated work and changes, ordering that the excavation made in the basement should be filled, replaced and reinforced, and full and complete repairs made by the plaintiff, and providing further “that the plaintiff have and recover of the defendants, J.C. Penney Company and Bradley Young, all of the damages sustained by it by reason of any of the acts found to have been done and performed by said defendant in paragraphs IV, VI, VII, VIII, and IX of said Findings of Fact, and the Court retains jurisdiction of said cause for the purpose of ascertaining and determining the amount of the plaintiff’s said damages, and of making and entering any further order or judgment in this action as shall be necessary to do full and complete justice, and equity between the parties hereto.”

From this judgment and from a denial of their application for new trial, defendants have appealed.

Before consideration of the case upon the merits, two matters of practice press themselves upon our attention from the face of the record. The first is with reference to the form of the judgment. A judgment is defined by section 2484, RC 1919, as “the final determination of the rights of the parties in the action.” We have recently had occasion to give some consideration to the question of just what constitutes a judgment as a matter of law in Re Badger State Bank, 245 N.W. 41. Every direction of a court or judge made and entered in writing and not included in a judgment is an order. Section 2592, RC 1919. Excepting in cases specifically authorized by statute (e.g., cf. sections 2909, 1914, 165, RC 1919), the practice under our Code recognizes no such thing as an interlocutory judgment, and the attempt to enter one in this case cannot be effective. What is denominated the judgment in this case must be deemed, as a matter of law, one or the other of two things. It is either final judgment, in which event the language seeking to retain further jurisdiction of the cause should be regarded as mere surplusage and void and ineffective for any purpose, or it is not a judgment at all but merely an interlocutory order, in which event the record would have to be made and the appeal would have to progress in all respects as an appeal from an order and not as an appeal from a judgment. It is apparent in this case that issue was joined upon proper pleadings, and trial was had and final judgment could and should have been entered. We deem it proper under the circumstances of this case, therefore, to treat the determination and direction of the trial court, although purporting to be interlocutory in form, as the final judgment in the cause and to disregard as ineffective for any purpose the portion thereof purporting to retain further jurisdiction in the matter.

The second preliminary matter is with reference...