Showers v. Goodman

67 Ind. App. 352 | Ind. Ct. App. | 1918

Ibach, C. J.

Appellee was a tenant of appellants, and brought this suit to enjoin appellants from ousting him from the premises rented and for damages. On his verified petition a temporary restraining order was issued against appellants “until the further order of the court.” TJpon final hearing on March 4, 1916, the court made a special finding of facts, and stated conclusions of law thereon. The temporary restraining order was made permanent, and appellants were enjoined from interfering with appellee’s possession of the building and premises in dispute so long as appellee complied with the terms of ,a certain lease under which he was in possession and occupying the said premises. The decree also provided that the injunction should terminate and be at an end in the event that-appellants and appellee should mutually terminate the tenancy, and in the event of its'-, termination by law, and appellee was given judgment for one dollar damages and costs. It is from this judgment that appellants have appealed.

We are first met -with a motion to dismiss the appeal, alleging as grounds therefor that the controversy between the parties has been settled, and the questions presented by the appeal have thereby become moot; also, for the further reason that appellants, prior to appealing the cause, accepted benefits under the decree of the court, and recognized the rights of appellee as determined by the judgment of the lower court.

1. The motion and affidavit of appellee, which is not contested by appellants, show that the tenancy over which the litigation arose has been by the parties mutually terminated, the premises surrendered by appellee, and that appellants have taken full possession thereof; that appellee has not had, or made, any claim for possession of the storeroom in question since September 25, 1916, long before taking of this appeal. It is clear, therefore, that before perfecting the appeal the parties did, by virtue of the decree of the court, terminate the injunction granted by mutual consent and agreement of the parties.

2. It is further made to appear that appellee lias remitted the judgment of one dollar; therefore there was no judgment in fact when this appeal was taken, except the judgment for costs. W.e are informed also that appellee continued tó occupy the premises from the date of the final judgment until September 25, 1916, and paid, and appellánts accepted, as rent therefor the sum of $392, being rent at the leased price from December 25, 1915, until the date aforesaid, when possession of the premises was surrendered by bina and accepted by appellants. These facts, which, as we have said, are not controverted, require a dismissal of the appeal. The questions presented by the record have become moot propositions of law, and will not be considered and determined by this court simply to decide the question of costs. Leavell v. Boney (1913), 181 Ind. 481, 104 N. E. 856, and cases cited.

3. Furthermore, by accepting and collecting rents from appellee according to the terms of the original lease for the time rent was unpaid before, and for the occupancy of the premises after, final judgment, appellants acknowledged appellee as their tenant and acknowledged the legality of the judgment of the trial court, and must now be held to be estopped to claim that such judgment is erroneous. Williams v. Richards (1898), 152 Ind. 528, 53 N. E. 765; McGrew v. Grayston (1896), 144 Ind. 165, 41 N. E. 1027; Scott v. Dilley (1912), 53 Ind. App. 100, 101 N. E. 313

Appeal dismissed.

Note. — Reported in 119 N. E. 219.