Hampton v. McKeehan

Salinger, J. 1. Appeal and ■ error : decissions reviewable : forcible detention of property. [1143] 2. Appeal and eeeoe : costs only Involved. [1142] I. The parties were in dispute over what was the term granted by a verbal lease. The plaintiff claimed that the lease expired on° March 1, 1916; the defendants, that it commenced at'that time, and terminated on March 1, 1917. Plaintiff served notices to quit, on the theory that the lease had expired. Defendants refused to yield possession, because they claimed the lease was not yet expired. Plaintiff then instituted action, alleging therein that defendants were refusing to vacate, in defiance of what he alleges the lease to be. He démanded the relief that, if defendants be found guilty of holding over after the termination of the lease, that judgment of removal be entered, and plaintiff put in possession, and that he have judgment for costs of suit. The answer is, in effect, a general denial, with claim that the lease had not expired. The verdict and judgment was simply that defendants were not guilty. This appeal is from that judgment. Now, whatever claims appellant may have against the appellees, the only question we have is whether plaintiff was wrongfully refused possession. If we reverse, we could not, on the issues joined, go beyond ordering a judgment of removal, and that appellant be put in possession. Appellant urges we should reverse, and give him the relief that was denied him below — remove the appellees, and [1143] put appellant in possession. Appellees have moved a dismissal, one'ground of which asserts, in substance, that appellees have removed themselves, and that appellant is at liberty to take possession, without the help of any court. We find this assertion in the motion to be true. It is, therefore, our opinion that a consideration and decision of this appeal will effect nothing, except to settle who shall pay costs. We cannot decide the appeal when nothing but that will be accomplished by the decision. Moller v. Gottsch, 107 Iowa 238; Young v. Olson, (Iowa) 115 N. W. 1020; Kelley v. Kelley, 187 Iowa 349. See, also, State v. Richmond & D. R. Co., 74 N. C. 287; State v. Loomis, (Tex.) 29 S. W. 415; 2 Century Digest, Sections 63 to 84; 3 Century Digest, Section 3122. We agree with appellant that, on the authority of Lewis v. Tilton, 62 Iowa 100, and Long v. Smith, 67 Iowa 22, this appeal should not be dismissed, unless it appears clearly, and without conflict, that our decision would .be futile. But, while the showing of movent may lack clearness on some points, and while the evidence on the motion exhibits conflicts, it is made perfectly clear, and is admitted, that appellees have abandoned possession, and that appellant can take it. 3'hear-cause.aavancing It is argued that the appellee has been guilty of unfair practice in the appellate court; that, while he entitled his motion to dismiss at one term, he in fact filed it at a later term, and so late as to give him H)e opportunity to urge for the motion to dismiss wEat he now does urge, — in effect, that, if appellees had acted more promptly, there would have been, ample time for a decision in this court that could effect something substantial. Quite a similar argument was made in Moller v. Gottsch, supra, and there held to be ineffective, even as it must so be held now. [1144] No matter what appellees did, we should not order their removal after they had removed themselves, nor grant a writ to obtain a possession when nothing prevents taking it. But if is said the appellees, in fact, held over wrongfully; that there is a right, on that account, to recover double rent; that there is a claim against them for damages on account of waste; and that suit is pending in the district court, making claim on both these heads; and that, in that suit, the judgment appealed from is set up as res judicata. Appellant argues that, at least, said claim for double rent is “involved in this appeal.” How is such a claim involved in' an appeal from judgment in a suit to eject, in which appellant was defeated by verdict of not guilty, in such sense as that avo should order the only thing that plaintiff prayed, and order it at a time when the very thing demanded in the only suit before us has already been done? If it were never so clear that appellees did hold over wrongfully after the termination of their lease, how does that change the rule that we may not grant relief at a time when there is no longer a right to obtain court action, because all that the court could do in any event has already been-done? Any loss that appellant may suffer because we decline to make a decision now is due to the case he has pleaded, and to his permitting time to lapse. Instead of asking a judgment which lapse of time has made useless, he should have pressed matters so that there could be judgment that would not be useless. What is now urged was the best of reason for speeding the filings, which an appellant can always do, and, if necessary, obtain an advancement. But it is no reason for disturbing the settled and salutary rule that appellate courts shall not devote time and labor to moot questions. The conclusions reached make it unnecessary to enter into the question whether a settlement or the receipt of money by appellant has lost him the right to proceed fur [1145] tlier. Having held that the appeal must be dismissed, reaching that result on one ground is as good as though it were done on two. We are constrained to sustain the motion. — Appeal dismissed. Ladd, C. J., Evans and Preston, JJ., concur.