SHERMAN v. MOORE, 222 Iowa 1359 (1937)

271 N.W. 606

BEN SHERMAN et al., Appellees, v. J.W. MOORE et al., Appellants.

No. 43801.Supreme Court of Iowa.
February 16, 1937.

APPEAL AND ERROR: Dismissal — forcible detainer of premises — appeal — nonright to maintain. Defendant in an action involving the sole question whether he was wrongfully detaining possession of premises after a refusal to pay rent, may not, after voluntarily surrendering possession in compliance with an order of removal, maintain an appeal from said order.

Appeal from Sioux City Municipal Court. — BERRY SISK, Judge.

This is an action of forcible entry and detainer to oust the defendants from the possession of certain premises occupied by

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them as a machine shop, plaintiffs contending that the defendants were in wrongful possession of said premises after they had been duly notified to quit and surrender the possession of said premises for nonpayment of rent due. Defendants answered, claiming the rent had been fully paid. At the close of the evidence, and after both parties had rested, the court sustained a motion of the plaintiffs for directed verdict, and defendants have appealed. — Appeal dismissed.

Baron Bolton, for appellees.

David F. Loepp, for appellants.

HAMILTON, J.

This is a forcible entry and detainer action which involves only the question of whether the defendants were wrongfully detaining possession of the premises. The trial court directed a verdict in favor of the plaintiffs from which the defendants appealed. Pending the appeal in this court defendants voluntarily surrendered possession of the premises to the plaintiffs, and appellees have filed a motion to dismiss the appeal because the matter involved is now moot. This motion is supported by affidavits setting forth the fact of the surrender of the possession to the plaintiffs.

On authority of the cases Simoens v. McMahon, 187 Iowa 462, 173 N.W. 118, and Kelley v. Kelley, 187 Iowa 349, 174 N.W. 342, motion to dismiss the appeal must be sustained. The appeal is therefore dismissed at appellants’ costs. — Appeal dismissed.

RICHARDS, C.J., and KINTZINGER, SAGER, MITCHELL, DONEGAN, and STIGER. JJ., concur.