Delmonica Hotel Co. v. Smith

• Decision Date: 15 January 1901
• Citation: 112 Iowa 659,84 N.W. 906
• Parties: DELMONICA HOTEL CO. v. SMITH.
• Court: Iowa Supreme Court

112 Iowa 659

84 N.W. 906

DELMONICA HOTEL CO.

v.SMITH.

Supreme Court of Iowa.

Jan. 15, 1901.

Appeal from district court, Jackson county; J. W. Bollinger, Judge.

Action of forcible entry and detainer. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Affirmed.D. T. Bauman and Hayes and Schuyler, for appellant.

D. A. Fletcher, for appellee.

DEEMER, J.

The controversy is over the possession of a strip of land about three feet wide between two lots in the city of Maquoketa, one of which is owned by plaintiff, and the other by defendant's lessor. Plaintiff contends that it has been in the peaceable occupation and possession of this strip for many years, and that defendant forcibly entered into the possession thereof, and unlawfully detained the same, when this action was commenced. The defendant denies plaintiff's prior occupancy and possession, and pleads his own possession, and title in his lessor. At the trial in the district court, the jury was instructed that plaintiff must establish its actual possession of the land prior to June 27, 1898, and that the defendantentered upon such possession by force, and continued in such possession down to the commencement of this suit. The jury was also instructed as to what would constitute actual possession, and, as the evidence established without conflict that defendant forcibly entered upon and took possession of this strip, the jury was further instructed that this element of plaintiff's case was properly made out. In answer to a special interrogatory, the jury found that plaintiff was in possession of the strip prior to the time that defendant forcibly took possession thereof. Complaint is made of the instructions, but, as no exceptions were taken at the time they were given or in the motion for a new trial, this complaint cannot be considered. After the case was appealed, defendant filed a motion in the district court to correct the record so as to show that exceptions were taken to the instructions. This motion was overruled. An additional abstract, showing the record made on this motion and an appeal from the ruling, is also filed, but, as no argument is made by appellant on the supposed error of the court denying the motion, we do not consider it necessary to consider the appeal. If considered, no error appears in the ruling. The case was heard on evidence adduced before the trial court that was conflicting, and we will not interfere.

The instructions, then, must be treated as the law of the case, and, as there is abundant evidence to support a verdict based thereon, we may only review the action of the trial court on the admission and rejection of evidence, and in denying defendant's requests for the instructions. With reference to these requests, it may be said that as appellant did not except to the instructions given, but was content to accept them as the law, he cannot now be heard to say that the court erred in refusing to give instructions asked by him in conflict therewith.

The second instruction asked was given in terms by the court in its charge. Others, which related to plaintiff's prior possession and occupancy, in so far as they stated rules in harmony with the charge, were in fact given, and still others that announced incorrect principles of the law were properly refused. To set out all these instructions would serve no useful purpose, and we conclude by saying that the question of plaintiff's prior possession and occupancy was submitted to the jury under proper instructions. The whole case was made to turn on this instruction, that was given...