Opinion
No. 40272.
September 22, 1930.
APPEAL AND ERROR: Review — Scope and Extent — Moot Case — Dismissal. An appeal by plaintiff-appellant from an order dismissing his action for specific performance will be dismissed on motion when it is made to appear that since the ruling in the trial court the defendant-appellee has specifically performed, and that such performance has been accepted by appellant. The court will not retain the appeal for the purpose of determining costs.
Appeal and Error: 4 C.J., § 2383, p. 575, n. 80, p. 577, n. 93; § 2387, p. 579, n. 12.
Appeal from Woodbury District Court. — C.C. HAMILTON, Judge.
Action in equity, for specific performance of a contract for the sale of certain real estate owned by the city of Sioux City, Iowa. A motion to dismiss plaintiffs' petition was sustained. Plaintiffs appeal. Subsequently, a motion to dismiss the appeal was filed. The facts appear in the opinion. — Appeal dismissed.
Henderson, Fribourg Hatfield, for appellants.
Henry C. Shull and Thomas J. Griffin, for appellee.
The petition in this case alleges, among other things, that, on or about the 12th day of March, 1929, the city of Sioux City, Iowa, was the owner in fee simple of certain property in said city, and that, on or about the said 12th day of March, the plaintiffs purchased of the defendant said real estate for the sum of $13,500, and on said day paid $3,000 of the purchase price in cash. On the 15th day of March, 1929, the plaintiffs paid an additional $10,000. It is also alleged that, notwithstanding the tender of the $500 balance of the purchase price, the city refused to accept the same, and failed and refused to give a warranty deed to the premises, free and clear of all liens and encumbrances. The prayer of the petition is for specific performance.
On the 6th day of May, 1929, the city filed a motion to dismiss, containing several grounds. This motion was sustained, and the plaintiffs appealed.
The abstract was filed in this court December 6, 1929; appellants' brief and argument, April 2, 1930; and appellee's brief and argument, April 30, 1930. On the 22d day of April, 1930, the appellee filed in this court a motion to dismiss the appeal.
It now appears that, on the 17th day of July, 1929, the city executed and delivered to the plaintiffs in this case a deed to the property in controversy, and said deed was accepted by the plaintiffs and placed on record in Woodbury County. Manifestly, the city cannot be required to convey title which it does not possess. This court will not determine moot questions, nor will it consider an appeal solely for the purpose of determining costs. Ormsby v. Graham, 123 Iowa 202; Hampton v. McKeehan, 187 Iowa 1141; Thie v. Consolidated Ind. Sch. Dist., 200 Iowa 359. The appeal is — Dismissed.
All the justices concur.