Opinion
No. 35609.
April 10, 1944.
APPEAL AND ERROR.
Where plaintiff suing for possession of property and for double rent withdrew claim for double rent, and judgment was rendered for possession of property and for amount of rent admitted to be due, and lease under which defendant claimed had expired when case reached circuit court on appeal, which court nevertheless affirmed the judgment, an appeal therefrom would be dismissed on ground the case had become moot.
APPEAL from the circuit court of Harrison county, HON. L.C. CORBAN, Judge.
Gaston H. Hewes and Jo Drake Arrington, both of Gulfport, for appellee, on motion to dismiss appeal.
The said case is now moot. The appellant defended this suit and refused to deliver possession of the property on the ground that "her term as a tenant will not expire under said lease until July 1, 1943;" and the said term having now expired, there is no issue for the court to decide. All this court can do is to dismiss the appeal.
Thomas v. Ferrell, 184 Miss. 87, 184 So. 425; McKinnon v. Poole, 142 Miss. 416, 107 So. 550; Yates v. Beasley, 133 Miss. 301, 97 So. 676; Campbell v. Lovgren, 171 Miss. 385, 157 So. 901; McDaniel v. Hurt, 88 Miss. 769, 92 Miss. 197, 41 So. 381; Pafhausen v. State, 94 Miss. 103, 47 So. 897; Kemper County v. Neville, 95 Miss. 56, 48 So. 727; Whidden v. Broadus, 108 Miss. 664, 67 So. 155; Hughes v. Ball, 140 Miss. 812, 106 So. 626; Sellier v. Board of Election Com'rs. of Harrison County, 174 Miss. 360, 164 So. 767; Richard v. King's Daughters Sons, Circle No. 2, 182 Miss. 475, 182 So. 101.
The appellee insists that the case of Henley v. Kilbas, 188 Miss. 604, 195 So. 582, relied on by appellant, has no application to the case at bar; in that case the question of double rent was left open, but in the case at bar it is forever foreclosed by the action of the appellee himself in waiving it in open court, and by the verdict of the jury and the judgment of the lower court, from which judgment the appellee did not appeal. The verdict of the jury was for only single rent at fifty dollars per month. Consequently, the appellant cannot rightfully contend that the case at bar is not moot.
White Morse, of Gulfport, for appellant, on motion to dismiss appeal.
Appellee seeks to dismiss the appeal herein, asserting that the case is now moot, for the reason that appellant refused to deliver possession of the property to appellee on the ground that "her term as a tenant will not expire under said lease until July 1, 1943," and that time having passed, there is no issue for the court to decide.
When a person is rightfully in possession of leased premises and the landlord seeks wrongfully to evict him, the case does not become moot upon the mere fact that the tenant's term has expired before the time of trial, because in such a case the general judgment in favor of the landlord, as was rendered in the instant case, would be to adjudge that the tenant was wrongfully in possession at the time the action was filed, and before his rightful term expired, and might subject him to double rent under Section 2225, Code 1930.
Henley v. Kilbas, 188 Miss. 604, 195 So. 582; Cahn v. Wright, 108 Miss. 420, 421, 66 So. 782; Kaufman v. Mastin, 66 W. Va. 99, 66 S.E. 92, 25 L.R.A. (N.S.) 855.
The appellee purchased the house in which the appellant was living and on her refusal to surrender possession thereof instituted this action in the county court of Harrison County for the possession of the property and a judgment against the appellant for double rent therefor. The defense plead by the appellant to this action was that she was in possession of the property under an unexpired lease thereof from its former owner at a rental of $50 per month. The case was tried before a jury by the county court which resulted in a verdict and judgment for the appellee for possession of the property and for the sum of $50 per month as rental therefor for the time the appellant was in default in the payment thereof. The appellee obtained an instruction to the jury which would have permitted it to return a judgment for him for double rent but his counsel when arguing the case advised the jury that the claim for double rent was withdrawn and that "we only ask for possession of the premises and $50 per month rent."
When the case reached the circuit court on appeal, the lease which the appellant claimed to have on the property had expired. A motion was there made by the appellee to dismiss the case as having become moot, but it was overruled and the judgment of the county court was affirmed by the circuit court. When the case reached the Supreme Court the appellee filed a motion therein asking that the appeal be dismissed for the reason that the lease under which the appellant claims the property having expired and the rent recovered by the appellee being that only which the appellant admitted to be due the case had become moot. Citing in support thereof Thomas v. Ferrell, 184 Miss. 87, 184 So. 425.
The only answer counsel for the appellant make to this motion is to cite the case of Henley v. Kilbas, 188 Miss. 604, 195 So. 582, and say that this motion is controlled thereby and therefore should be overruled. In that case the landlord recovered a judgment for the possession of property withheld from him by his tenant in an action in which no claim for rent was asserted. The claimed lease of the tenant expired by the time the case was appealed to this court, which declined to dismiss the appeal on the ground that the case had become moot for the reason that the judgment appealed from adjudged that the tenant was wrongfully in possession of the property and might therefore subject him to a claim by the landlord for double rent. No such prospective liability of the tenant here appears for the reason that the appellant's liability for rent was here adjudicated and the landlord recovered only that rent which the tenant admitted to be due. The motion will be sustained.
Appeal dismissed.